           Case: 14-11894   Date Filed: 06/03/2015   Page: 1 of 14


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-11894
                         Non-Argument Calendar
                       ________________________

    D.C. Docket Nos. 2:10-cv-08029-RDP-JHE; 2:07-cr-00384-RDP-JHE-1



DARRYL LOVOY COOK,

                                                           Petitioner-Appellant,

                                   versus

UNITED STATES OF AMERICA,

                                                         Respondent-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Alabama
                       ________________________

                              (June 3, 2015)

Before JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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      Darryl Lovoy Cook, a federal prisoner, appeals the district court’s denial of

his 28 U.S.C. § 2255 motion to vacate, correct, or set aside his sentence following

an evidentiary hearing on his claim that trial counsel rendered ineffective

assistance by failing to advise him adequately of the government’s position on a

potential plea deal. The district court denied § 2255 relief, concluding that Cook

had not shown that he was prejudiced by any deficient performance because he

was unwilling to accept the government’s conditions for any potential plea

agreement. Alternatively, the court determined that counsel’s performance was a

reasonable tactical response to a challenging attorney-client relationship.

       The district court granted a certificate of appealability on the following

question: “whether Mr. Cook was deprived of his Sixth Amendment right to

effective assistance of counsel due to his counsel’s alleged failure to adequately

advise him of the Government’s position on a plea in his case.” After careful

review, we answer this question in the negative, and therefore affirm the district

court’s denial of Cook’s § 2255 motion.

                                            I.

       Cook was the Birmingham, Alabama, area coordinator for a multi-state

counterfeit-check conspiracy. 1 The conspiracy defrauded businesses and banks of

over $1 million by creating counterfeit checks that appeared to draw from a

      1
          These facts are taken from the presentence investigation report based on evidence
presented at Cook’s jury trial.
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legitimate account at a genuine bank and that were made payable to members of

the conspiracy. Cook recruited others to the conspiracy and served as a liaison

between the conspirators who counterfeited and forged checks and those who

cashed them.

      For his part in the conspiracy, Cook initially was indicted on two counts of

possessing counterfeit checks and one count of conspiracy to commit bank fraud.

In November 2007, the government filed an eighteen-count superseding indictment

against Cook and ten co-defendants. In the superseding indictment, Cook was

charged with six counts of bank fraud and nine counts of aggravated identity theft,

in addition to the original three counts. Cook’s co-defendants all pled guilty.

Cook, however, proceeded to trial.

      At trial, the government’s evidence consisted primarily of testimony from

cooperating co-defendants and two confessions Cook made while in police

custody. Before trial, Cook unsuccessfully had moved to suppress the confessions,

alleging that they were substantially forged. The jury found Cook guilty of all

eighteen counts. The district court sentenced Cook to a total term of 156 months

of imprisonment, and we affirmed Cook’s convictions and sentences on direct

appeal. United States v. Cook, 336 F. App’x 875 (11th Cir. 2009).




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                                              II.

       Cook timely filed a 28 U.S.C. § 2255 motion alleging, among other things,

that his trial counsel, Hube Dodd, rendered ineffective assistance by failing to

advise him about the status of plea negotiations.              The district court held an

evidentiary hearing at which Cook was represented by counsel. 2

       At the evidentiary hearing, Cook testified that he consistently told Dodd that

he was willing to accept responsibility and to plead guilty to the charges against

him, even after the superseding indictment was filed. But Dodd, according to

Cook, never communicated a plea offer from the government, did not inform Cook

of the government’s position regarding the terms of a potential plea deal, and told

Cook that he had to go to trial despite a very low chance of success. Cook stated

that Dodd became “irritable” and frustrated with him whenever he brought up the

possibility of a plea deal, even though Cook believed that one was possible

because his co-defendants had received plea deals. On cross-examination, Cook

maintained that he was innocent of most of the conduct charged in the superseding

indictment—admitting only that he was a driver for two instances of check fraud—

and that the confessions attributed to him were substantially forged.

       2
          Initially, the district court denied Cook’s § 2255 motion after holding an evidentiary
hearing at which Cook was denied appointed counsel. Recognizing that this was error, see Rule
8(c), Rules Governing Section 2255 Proceedings (“If an evidentiary hearing is warranted, the
judge must appoint an attorney to represent a moving party who qualifies to have counsel
appointed under 18 U.S.C. § 3006A.”), the district court appointed counsel and held another
evidentiary hearing. This appeal concerns the second evidentiary hearing.


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      Dodd testified that plea negotiations with the government did not advance

because Cook was unwilling to accept responsibility for the “vast majority,” or the

“lion’s share,” of the conduct alleged in the superseding indictment, as the

government insisted. In other words, Cook would have had to admit to conduct

establishing him as the “ringleader” of the conspiracy in Birmingham, which,

Dodd explained, Cook was unwilling to do. Dodd said that there was no chance of

a plea deal before the superseding indictment because it was clear that the

government intended to seek additional charges and because the government had

rejected Cook’s initial offer to plead guilty to the original indictment. Once Cook

moved to suppress the confessions, the government additionally required as part of

any plea deal that Cook recant his allegations that his signed confessions were

forged and that the government agents were liars.

      Dodd further testified that he communicated the government’s terms to

Cook “numerous times,” but Cook’s response was that he was not guilty of the vast

majority of the conduct and that he wished to file a motion to suppress and to

proceed to trial. Dodd stated that he told Cook that he would have difficulty

winning at trial based on the government’s evidence against him. At some point,

Cook expressed frustration that Dodd did not believe Cook was innocent. From

that point forward, Dodd explained, although he continued to pursue a potential

plea deal with the government, in order “to continue a positive relationship,” he


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“was not very direct in suggesting to [Cook] repeatedly that he had to plead guilty

or that he should plead guilty.” He elaborated on cross-examination that he began

to “tread[] very lightly” with Cook in November or December 2012, telling Cook

the steps that would be required to plead guilty rather than directly advising him to

plead guilty. For example, he told Cook that he would have to admit to certain

facts by pleading guilty, but Cook “never wavered in his insistence that he did not

do the vast majority of the conduct that was described and attributed to him.”

Nonetheless, Dodd stated that he kept in contact with the government about a

possible deal until two to four weeks before trial, but the government’s essential

terms did not change. Dodd testified that no formal plea offer was ever made.

      After hearing the evidence, the district court denied Cook’s § 2255 motion in

open court. The court first concluded that Cook had not shown that he was

prejudiced by any alleged deficiency in Dodd’s performance.          From the very

beginning, the court found, the government was not willing to enter into any plea

agreement unless Cook admitted responsibility for a substantial amount of criminal

activity and, once Cook filed a suppression motion, recanted his allegations of

forgery. The court determined that Cook was never willing to accept substantial

responsibility for the conduct alleged in the superseding indictment, and, even in

his sworn testimony at the § 2255 evidentiary hearing, he still did not wish to take

such responsibility. As a result, the court concluded that no prejudice occurred


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because Cook was not willing to do what the government insisted upon, and the

government was not willing to do what Cook wished to do.

      In the alternative, the district court found that Dodd’s performance was not

deficient. The court characterized Dodd’s conduct as a reasonable tactical choice

in response to a challenging attorney-client relationship. The court found that

Dodd was well aware that Cook wanted to plead to some small amount of conduct,

but not all the conduct the government was going to insist upon. This disparity,

according to the court, created frustration in the attorney-client relationship and

hamstrung Dodd’s ability to negotiate a plea. The court further determined that

Dodd communicated to Cook the government’s two essential conditions for any

plea deal, which did not change at any time. Due to the strain in the relationship,

the court stated, Dodd “did not keep his thumb down every time they discussed the

case on the ‘offer’ that had previously been made,” but he “carefully and

respectfully” tried to “honor[] his client’s position.” The court discredited Cook’s

testimony that Dodd had insisted that he go to trial. Accordingly, the court denied

the § 2255 motion, entered judgment, and granted a certificate of appealability.

                                        III.

      On appeal from the district court’s denial of a § 2255 motion, we review

legal conclusions de novo and factual findings for clear error. Osley v. United

States, 751 F.3d 1214, 1222 (11th Cir. 2014). We review de novo a claim of


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ineffective assistance of counsel, which is a mixed question of law and fact. Id. A

district court’s credibility determinations are entitled to “substantial deference.”

Jeffries v. United States, 748 F.3d 1310, 1313 (11th Cir.), cert. denied, 135 S. Ct.

241 (2014).

                                        IV.

      The Sixth Amendment guarantees a criminal defendant the right to effective

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct.

2025, 2063 (1984). The benchmark for judging a claim of ineffective assistance of

counsel is whether counsel’s performance “so undermined the proper functioning

of the adversarial process that the trial cannot be relied on as having produced a

just result.” Id. at 686, 104 S. Ct. at 2064. To make such a showing, a prisoner

must prove two things: (1) counsel’s performance was deficient; and (2) the

deficient performance prejudiced the defense. Id. at 687, 104 S. Ct. at 2064. “A

habeas petitioner claiming ineffective assistance of counsel must carry his burden

on both Strickland prongs, and a court need not address both prongs if the

defendant has made an insufficient showing on one.” Osley, 751 F.3d at 1222.

      The Sixth Amendment right to counsel, and with it the Strickland analysis,

“extends to the plea-bargaining process.” Lafler v. Cooper, 566 U.S. ___, ___, 132

S. Ct. 1376, 1384 (2012); see Missouri v. Frye, 566 U.S. ___, ___, 132 S. Ct. 1399,

1405 (2012); Padilla v. Kentucky, 559 U.S. 356, 373, 130 S. Ct. 1473, 1486


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(2010); Osley, 751 F.3d at 1222.        The right to effective counsel “extends

specifically to ‘the negotiation and consideration of plea offers that lapse or are

rejected.’” Osley, 751 F.3d at 1222 (quoting In re Perez, 682 F.3d 930, 932 (11th

Cir. 2012)).

      The Supreme Court has not elaborated in detail on the “duty and

responsibilities of defense counsel in the plea bargain process.” Frye, 132 S. Ct. at

1408; see Lafler, 132 S. Ct. at 1384 (finding it unnecessary to explore performance

because all parties agreed that defense counsel was deficient). In Frye, counsel

allowed a time-limited plea offer to expire without advising the defendant or

allowing him to consider it. Frye, 132 S. Ct. at 1408. The Court found that this

was deficient performance, holding that, “as a general rule, defense counsel has the

duty to communicate formal offers from the prosecution to accept a plea on terms

and conditions that may be favorable to the accused.” Id. Consistent with Frye,

we have stated, in the context of plea negotiations, that “[c]ounsel has an

obligation to consult with his client on important decisions and to keep him

informed of important developments in the course of the prosecution.” Diaz v.

United States, 930 F.2d 832, 834 (11th Cir. 1991).

      The inquiry into prejudice, however, is more defined in the plea-bargaining

context: “[A] defendant must show the outcome of the plea process would have




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been different with competent advice.” Lafler, 132 S. Ct. at 1384. In order to

establish prejudice in the context of a rejected or failed plea bargain,

             a defendant must show a reasonable probability
             that but for counsel’s ineffectiveness: (1) “the plea
             offer would have been presented to the court (i.e.,
             that the defendant would have accepted the plea
             and the prosecution would not have withdrawn it
             in light of intervening circumstances)”; (2) “the
             court would have accepted its terms”; and (3) “the
             conviction or sentence, or both, under the offer’s
             terms would have been less severe than under the
             judgment and sentence that in fact were imposed.”

Osley, 751 F.3d at 1222 (quoting Lafler, 132 S. Ct. at 1385).

                                          A.

      Cook contends that Dodd’s performance was deficient because he “did not

continuously communicate the Government’s position on a potential plea bargain

to Mr. Cook.” He asserts that Dodd admitted to “treading lightly” at some point

and ceasing to directly communicate with Cook about a potential plea bargain and

that this was contrary to the reasoning of Supreme Court’s decision in Frye and

Lafler and to the Alabama Rules of Professional Conduct. See Frye, 132 S. Ct. at

1408 (noting that codified standards of professional practice “can be important

guides” in assessing counsel’s performance). Cook urges this Court to interpret

Frye to apply not only to formal offers, but also to the process that produces them.

      It is unnecessary to determine the scope of defense counsel’s responsibilities

in this context—concerning preliminary plea negotiations and, at best, a nascent,
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oral plea offer—or to decide whether Dodd’s performance was deficient. 3 We

agree with the district court that Cook’s inability to establish prejudice is

dispositive of his ineffective-assistance claim. See Osley, 751 F.3d at 1222. We

turn to the question of prejudice now.

                                              B.

       Cook argues that he suffered prejudice because, had trial counsel kept him

consistently informed about plea negotiations, a reasonable probability existed that

he would have pled guilty and that he would have received a benefit from the

government by doing so.          The government agrees that there is a reasonable

probability of a less severe conviction and sentence had a plea deal been reached.

Thus, the question is whether there was a reasonable probability of a plea

agreement that would have been accepted by Cook, the government, and the court.

       Cook contends that the government would have agreed to a plea deal if Cook

had agreed to the government’s terms.              True enough, but Cook rejected the

government’s terms from the time they were first proposed to him. And, explicitly

or implicitly, he continued to reject these terms through the evidentiary hearing on

his § 2255 motion.



       3
          Nonetheless, we find the district court’s explanation of why Dodd’s performance was
not deficient to be persuasive. (See D.E. 56 at 151-56). Nor does the evidence show that Dodd
failed to “consult with his client on important decisions and [] keep him informed of important
developments in the course of the prosecution.” Diaz, 930 F.2d at 834. The government’s
position did not change, so no “important development” existed to communicate.
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       The government insisted as part of any plea deal that Cook accept

responsibility for the “lion’s share” of criminal conduct alleged in the superseding

indictment, including that he was, essentially, a manager of the check-cashing

scheme in Birmingham.            The government also wanted Cook to recant his

allegations that his confessions were forged. The confessions were consistent with

Cook’s broader role in the scheme. These two requirements did not change.

       Cook knew the government’s position on a potential plea deal because Dodd

communicated these essential terms to Cook on numerous occasions. 4 Although

Cook was interested in pleading guilty, and although he testified at the hearing that

he was willing to accept whatever plea deal was offered by the government in

order to avoid trial, “[g]iven [Cook’s] awareness of the [nascent] plea offer, his

after the fact testimony concerning his desire to plead, without more, is insufficient

to establish that but for counsel’s alleged advice or inaction, he would have

accepted the plea offer.” Diaz, 930 F.2d at 835. The record is clear that Cook,

both at the time of plea negotiations and at the § 2255 evidentiary hearing, refused

to accept more than limited responsibility and maintained that the confessions were

forged. In short, Cook wanted a plea deal that the government simply was not

willing to offer.


       4
          While Cook may dispute this fact, the district court credited Dodd’s testimony on this
point, and Cook has offered no reason why we should not defer to the court’s finding. See Osley,
751 F.3d at 1222; Jeffries, 748 F.3d at 1313.
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       Cook asserts that he would have pled guilty if Dodd had more thoroughly

explained the legal ramifications of co-conspirator liability. 5                In essence, he

contends that he would have accepted the government’s terms, had he understood

that the government’s plea position was based on the fact that the evidence was

sufficient to prove him guilty at trial of the charges in the superseding indictment.

This contention is belied by the fact that both attorney and client testified that

Dodd told Cook he was probably going to lose if he went to trial.                           Dodd

specifically advised Cook that the jury was likely to believe the government agent

on the validity of the confessions. The confessions, which Cook continues to

dispute, were consistent with the government’s position on Cook’s broader level of

culpability. Given the adamance and consistency with which Cook held his beliefs

about his culpability in the conspiracy, Cook’s current assertion that, with better

advice he would have pled guilty to a greater role in the conspiracy, is wholly

speculative and unsupported by the record and the district court’s findings.

       While not dispositive, Cook’s insistence on his innocence of the conduct to

which the government insisted he admit, both before and after trial, is a “relevant


       5
          The government suggests that we should not address this argument because it is outside
the scope of the certificate of appealability. See Murray v. United States, 145 F.3d 1249, 1250-
51 (11th Cir. 1998) (holding that, on appeal from the denial of a § 2255 motion, “appellate
review is limited to the issues specified in the COA.”). While we agree that Cook cannot
proceed independently on a claim that counsel inadequately advised him of the charges he faced,
we construe the certificate of appealability as including these issues as they relate to “counsel’s
alleged failure to adequately advise [Cook] of the Government’s position on a plea in his case,”
given that similar points were raised below and discussed by the district court.
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consideration” that “makes it more difficult to accept his claim” that he would have

agreed to any plea deal the government would have offered him. See Osley, 751

F.3d at 1224-25. So too is the fact that plea negotiations never advanced to any

level of specificity. See id. at 1225 (“The lack of definition in a plea offer makes it

substantially harder to determine it likely that a plea acceptable to the defendant

would have been entered without the prosecution canceling it or the trial court

refusing to accept it.” (brackets and emphasis omitted) (quoting Merzbacher v.

Shearin, 706 F.3d 356, 370 (4th Cir. 2013))).

      Assuming that “there may be cases in which a petitioner can show

Strickland prejudice despite the incipience of the plea offer he did not accept due

to his counsel’s lack of communication or inadequate advice,” Merzbacher, 706

F.3d at 369-70, this is not such a case. Given the parties’ entrenched and widely

divergent positions on a potential plea deal, Cook has not shown a reasonable

probability that a plea deal could have been reached and then accepted by the

court. See Osley, 751 F.3d at 1222.

      Because Cook has failed to show that he was prejudiced by counsel’s

alleged ineffectiveness in advising him about the government’s position in plea

negotiations, we AFFIRM the denial of his § 2255 motion.




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