               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 18a0163n.06

                                      Case No. 16-6531

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT                               FILED
                                                                             Mar 28, 2018
                                                                         DEBORAH S. HUNT, Clerk
PHILLIP THOMPSON,                                   )
                                                    )        ON APPEAL FROM THE
       Petitioner-Appellant,                        )        UNITED STATES DISTRICT
                                                    )        COURT FOR THE WESTERN
v.                                                  )        DISTRICT OF TENNESSEE
                                                    )
UNITED STATES OF AMERICA,                           )                  OPINION
                                                    )
       Respondent-Appellee.                         )


BEFORE: COOK, McKEAGUE, and STRANCH, Circuit Judges.

       McKEAGUE, Circuit Judge. Appellant Phillip Thompson pleaded guilty to two bank

robbery charges and three firearms offenses and was sentenced to forty years in prison.

Thompson pleaded guilty to all five counts without a plea agreement. In the process, he alleges

that he declined the prosecution’s offer of a 15-year plea deal. He refused the deal, against

advice of counsel, in reliance on counsel’s estimate that he would otherwise likely face a

sentence of just 16 to 19 years. By refusing to plead guilty pursuant to agreement, Thompson

preserved the right to challenge his sentence on appeal and hoped to win a reduction of the

sentence.   Had he known he was actually risking exposure to a 40-year prison sentence,

Thompson contends he certainly would have accepted the prosecution’s offer. Because his

attorney’s estimate was so wildly off-target, Thompson contends he was denied effective

assistance of counsel. The district court denied Thompson’s motion to vacate his sentence under
Case No. 16-6531, Thompson v. United States


28 U.S.C. § 2255. On appeal, Thompson asks the court to vacate the judgment and remand with

instructions ordering imposition of a sentence of fifteen years, in accordance with the

prosecution’s original offer. Finding the record to be materially incomplete, we vacate and

remand for an evidentiary hearing.

                                     I. BACKGROUND

       A five-count indictment was filed in the Western District of Tennessee on January 13,

2010. Counts 1 and 3 charged defendant Phillip Thompson with two bank robberies, in violation

of 18 U.S.C. § 2113(a); Count 2 charged him with knowingly using and carrying a firearm in

relation to a crime of violence, in violation of 18 U.S.C. § 924(c); Counts 4 and 5 charged

Thompson, having previously been convicted of a felony, with possession of a firearm and

ammunition, respectively, in violation of 18 U.S.C. § 922(g). Thompson admitted that he

committed two bank robberies in Memphis on December 17, 2009, that he possessed and used a

firearm and ammunition in relation to the robberies, and that he fired shots from a rifle while

police officers were chasing him before he was arrested.

       Eventually, plea negotiations between the government and Thompson’s attorney, Marty

McAfee, came to revolve around the possibility of a Rule 11(c)(1)(C) agreement that would have

resulted in a prison sentence of 15 years, if accepted by the district court. Attorney McAfee

recommended that Thompson accept the offer, estimating that he could otherwise face a sentence

of “70–87 months consecutive to 10 years.” McAfee advised Thompson that this was merely an

estimate, but he had checked with a sentencing expert in the probation department for assurance

that his estimate was reliable. Against counsel’s advice, Thompson rejected the offer and, when

the government rejected Thompson’s counter-offer of a binding agreement for a ten-year

sentence, Thompson pleaded guilty as charged without any agreement. Thompson explained in



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Case No. 16-6531, Thompson v. United States


his affidavit that, rather than accept the putative 15-year deal, he preferred to preserve his right to

challenge the eventual sentence.

       Before Thompson tendered his guilty plea, the district court undertook the obligatory plea

colloquy, advising Thompson of the potential penalties for the charged offenses. Specifically,

the court advised Thompson that he was subject to a prison term of up to 20 years on each of the

bank robbery counts; a prison term of seven years to life on the Count 2 charge of using a

firearm in connection with a bank robbery; and a sentence of up to ten years on each of the felon-

in-possession charges. The court further advised that the sentence would be imposed by the

court after preparation of a presentence report, with reference to the advisory sentencing

guidelines. The court inquired of Thompson whether he understood that the sentence actually

imposed “may be different from any estimate of the sentence that your counsel, government

counsel, or anyone else may have given to you?” Thompson said he understood.

       The district court then proceeded to receive the government’s proffer of evidence it

expected to produce to establish the charged offenses. Thompson acknowledged and agreed,

under oath, that the government would be able to present the proffered proofs, with one

exception: he disagreed with the representation that he had fired the rifle at the pursuing officer.

Nonetheless, Thompson confirmed that he still wanted to plead guilty to the charged offenses,

whereupon the court accepted his plea and adjudged him guilty as charged, and referred the

matter for preparation of the presentence report.

       The presentence report was prepared in January 2012. After Thompson received the

report, indicating he faced a much longer prison sentence than anticipated, he had little contact

with attorney McAfee before sentencing, in June and July 2012. Thompson avers that he tried to

contact McAfee to discuss the possibility of withdrawing his plea, but received no response.



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Otherwise, during this several-month interval, the record gives no indication of Thompson’s

objection to the presentence report’s assessment, no indication of dissatisfaction with McAfee’s

representation, and no indication of an effort to withdraw his plea. The sentencing hearing

commenced on June 20, 2012, but sentence was not imposed because late objections were raised

that suggested the need for additional fact finding. The sentencing hearing was continued on

July 19, 2012.

       At issue in the second hearing, in relevant part, was the potential “official victim”

offense-level adjustment based on Thompson’s having fired numerous rounds from a rifle at a

pursuing officer following the second robbery. This version of events was confirmed by the

testimony of the pursuing officer, Memphis Police Officer John Standridge. Standridge said he

observed the driver of the robbery suspect’s vehicle lean out of the window with an assault rifle

and fire at least a dozen shots in his direction from a distance of 70 to 75 feet. In response,

Thompson relied on the written statement he’d given to police when arrested, indicating he had

fired shots “to hopefully get the officer to stop or slow down so I could get away,” and adding,

“I wasn’t trying to hit him.” R. 68 (No. 2:10-cr-20010), Sent. Tr. at 92, Page ID 221. The

district court found the officer credible, found that Thompson had fired at the pursuing squad car,

and applied a six-point offense-level adjustment, plus a two-point increase for reckless

endangerment. And having found that Thompson made a false statement regarding his intent in

firing the rifle, the court withdrew his acceptance-of-responsibility credit, further increasing the

offense level.

       Consequently, the district court arrived at an advisory guidelines range of 324 to 405

months for the Counts 1 and 3 bank robbery charges and imposed a sentence of 20 years on each




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Case No. 16-6531, Thompson v. United States


count, to run concurrently.1 The court determined that a ten-year mandatory minimum sentence

applied to the Count 2 charge for use of the firearm in relation to a robbery, to run consecutively.

Finally, the court imposed concurrent sentences of ten years for each of the Counts 4 and 5 felon-

in-possession charges, to be served consecutively to the other (20-year and 10-year) sentences,

resulting in a total term of 40 years’ imprisonment.

       Thompson’s sentence was affirmed on direct appeal. The court rejected Thompson’s

only claim of error, i.e., that he was wrongly denied an offense-level reduction for acceptance of

responsibility. United States v. Thompson, 531 F. App’x 549 (6th Cir. 2013). Again, there was

no hint of dissatisfaction with McAfee’s representation in the district court proceedings or of a

frustrated desire to withdraw his guilty plea.

       Less than two months later, Thompson, proceeding pro se, filed his motion to vacate the

sentence under 28 U.S.C. § 2255. The district court allowed several amendments of the motion

before denying it in its entirety on August 4, 2016. The district court also denied Thompson’s

motion for an evidentiary hearing and declined to certify the case for appeal. We certified the

following issues:

       whether counsel rendered ineffective assistance during plea negotiations, whether
       Thompson’s ultimate plea deal precludes his claim for ineffective assistance
       during those plea negotiations, and whether the district court should have
       conducted an evidentiary hearing on that ineffective-assistance claim.

R. 12, Order, Apr. 13, 2017. We also appointed counsel to represent Thompson in this appeal.

Of the three issues certified, only the first and third are actually disputed. The government has

conceded that Thompson’s decision to plead guilty does not preclude his claim for ineffective

assistance in plea negotiations leading up to that decision.

       1
         Also contributing to the disparity between this range and the 70 to 87 months originally
estimated by McAfee was McAfee’s incorrect assumption that Thompson’s criminal history
would place him in criminal history category I rather than III.
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Case No. 16-6531, Thompson v. United States


                                        II. ANALYSIS

       A. Standard of Review

       The denial of Thompson’s § 2255 motion is, in its legal conclusions, reviewed de novo

and, in its factual findings, reviewed for clear error. Hamblen v. United States, 591 F.3d 471,

473 (6th Cir. 2009). The denial of Thompson’s request for an evidentiary hearing is reviewed

for abuse of discretion. Smith v. United States, 348 F.3d 545, 550 (6th Cir. 2003).

       B. Ineffective Assistance

       The relevant standards governing an ineffective-assistance claim are succinctly stated in

Lafler v. Cooper, 566 U.S. 156, 162–63 (2012), confirming that a defendant is entitled to

effective assistance of competent counsel in plea negotiations. To prevail on a claim that he was

denied effective assistance, a defendant must meet the two-part test established in Strickland v.

Washington, 466 U.S. 668 (1984). The performance prong of the Strickland test requires a

defendant to show that counsel’s representation fell below an objective standard of

reasonableness. Lafler, 566 U.S. at 163. The prejudice prong requires a defendant to show that

there is a reasonable probability the outcome of the plea process would have been different had

he received competent advice. Id.

       Thompson contends that attorney McAfee’s estimate of the likely length of his sentence,

in the range of 16 to 18 years, being less than half as long as the sentence imposed, was so

inaccurate as to have undermined his ability to intelligently evaluate the government’s offer of a

15-year plea deal. Thompson acknowledges that McAfee advised him to accept the offer, but

contends he had no idea he was risking exposure to a prison sentence of 40 years or more by

rejecting it and pleading guilty without an agreement. Had McAfee given more accurate advice,

Thompson attests in his affidavit that he would have accepted the government’s offer.



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Case No. 16-6531, Thompson v. United States


        The district court rejected this claim even as it acknowledged that “[a] criminal

defendant has a right to expect at least that his attorney will . . . explain the sentencing exposure

the defendant will face as a consequence of exercising each of the options available.” R. 38 (No.

2:13-cv-2737), Order at 28, Page ID 285 (quoting Smith, 348 F.3d at 553). Yet, the court held

that an erroneous sentencing guidelines prediction does not justify setting aside the guilty plea,

citing United States v. Hicks, 4 F.3d 1358, 1363 n.3 (6th Cir. 1993). The court noted that,

irrespective of McAfee’s miscalculation, he had recommended acceptance of the government’s

offer. The decision to reject the offer was thus deemed to be Thompson’s, because he wanted to

preserve his right to appeal the sentence. The court determined that McAfee’s representation

was not deficient. Moreover, the court noted that the record did not substantiate Thompson’s

allegation that the government had in fact offered him a valid plea agreement. And finally, the

court held that the plea colloquy indicates Thompson understood that he could not rely on his

attorney’s sentencing estimate and that he knowingly pleaded guilty. On appeal, Thompson

challenges the district court’s ruling on several grounds.

       1. Deficient Performance

       First, Thompson contends, citing Magana v. Hofbauer, 263 F.3d 542 (6th Cir. 2001), that

McAfee’s miscalculation amounted to “gross misadvice” that “certainly fell below an objective

standard of reasonableness under prevailing professional norms.” Id. at 550. In Magana, the

defendant was charged with two cocaine trafficking offenses. The prosecution offered to dismiss

one count in exchange for a guilty plea on the other, which would have resulted in a mandatory

minimum sentence of ten years. Magana’s counsel erroneously believed that, if his client were

convicted of both offenses in trial, he would face the possibility of two ten-year sentences—that

would, however, run concurrently. Seeing no practical advantage in pleading guilty, he advised



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Case No. 16-6531, Thompson v. United States


Magana to reject the offer. Magana rejected the offer, went to trial, was convicted of both

offenses, and was sentenced to two ten-year sentences, to be served consecutively, per statutory

mandate. Id. at 544–45. In denying post-conviction relief on Magana’s ineffective-assistance

claim, the state courts effectively assumed that his attorney’s performance was deficient.

Magana was held to have not shown prejudice, however, because he believed he could win at

trial and had not shown that he would have accepted the plea offer even if he had been better

informed of the potential sentence. Id. at 545, 548–50. In habeas review, Magana was held to

have shown a “reasonable probability” that he would have accepted the prosecution’s plea offer

if he had been afforded effective assistance. The writ was conditionally granted, requiring the

state to grant Magana a new plea hearing. Id. at 552–53.

       Magana is both analogous and distinguishable. In relation to the deficient performance

prong, the magnitude of McAfee’s miscalculation is similar to Magana’s counsel’s. However,

Magana’s counsel’s error was clearer and less defensible than McAfee’s. Magana’s counsel

demonstrated “complete ignorance of the relevant law under which his client was charged.” Id.

at 550. In fact, Magana’s counsel resolutely—and erroneously—maintained that the maximum

sentence Magana faced, whether he pleaded guilty to one offense or was found guilty of both

offenses, was ten years.     Id.   Magana relied on the misadvice, followed his attorney’s

recommendation, and rejected the offered plea agreement.

       In contrast, McAfee, in counseling Thompson, made it “clear that the best [he] could

provide, short of receipt of the PSI Report, was an estimate of his punishment exposure under the

Guidelines.” R. 25 (No. 2:13-cv-2737), McAfee Aff. at 3, Page ID 168. Moreover, in reaching

his estimate, McAfee had, quite reasonably, consulted with a sentencing expert in the probation




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Case No. 16-6531, Thompson v. United States


department for assurance that his estimate was reliable. Id.2 In those discussions, however,

McAfee apparently failed to consider or mention the impending dispute regarding shots fired

during the police chase. This oversight accounts for most of the disparity between McAfee’s

estimate and the sentence actually imposed.3 While McAfee was aware of the impending factual

dispute, his affidavit is devoid of explanation for his failure to factor it into his projected-

sentence calculations.4 Yet, despite his error, McAfee did advise Thompson to accept the

prosecution’s offer. Unlike Magana, who followed his attorney’s “gross misadvice” in rejecting

the prosecution’s favorable plea offer and later regretted it, Thompson rejected McAfee’s

recommendation to accept the plea offer and now regrets that he didn’t follow counsel’s advice.

Hence, in comparison with counsel’s deficient performance in Magana, the shortcoming in

McAfee’s performance does not fall as certainly below the objective standard of reasonableness.

       It follows that Magana does not compel the conclusion that McAfee’s performance was

deficient in a constitutional sense. The instant facts pose a closer question. In Pough v. United

States, 442 F.3d 959 (6th Cir. 2006), we stated that to establish deficient performance in plea
       2
         Based on information provided by McAfee, Sentencing Guidelines Specialist Judy
Palmer had arrived at an advisory guidelines range of 87 to 108 months, plus ten consecutive
years—not substantially different from McAfee’s original estimate. R. 13-2 (No. 2:13-cv-2737),
Email dated 10/13/11, Page ID 90.
       3
         McAfee failed to recognize the extent to which the potential adjustment for shots fired
at an officer could result in a substantial offense-level increase. In addition, although McAfee
advised Thompson that he could face a longer sentence if he engaged in a credibility contest with
the pursuing officer over how he aimed the rifle when the shots were fired, he did not anticipate
the loss of credit for acceptance of responsibility. Further, McAfee erroneously estimated that
Thompson’s past misconduct placed him in criminal history category I rather than III. These
three errors substantially account for the difference between the estimated guidelines range and
the range arrived at by the district court.
       4
         McAfee’s affidavit confirms that he knew about the dispute, but implies his belief that
the government might not be able to preponderate: “The testimony at the sentencing hearing
regarding the shots fired at the officer pursuing him was much more graphic and detailed than
what I had seen in the discovery.” R. 25 (No. 2:13-cv-2737) McAfee Aff. at 2–3, Page ID 167–
68. Still, uncertainty regarding the facts hardly excuses McAfee’s failure to explore the
sentencing possibilities with Thompson.
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Case No. 16-6531, Thompson v. United States


bargaining, the defendant “must show that counsel did not attempt to learn the facts of the case

and failed to make a good-faith estimate of a likely sentence.” Id. at 966 (quoting United States

v. Cieslowski, 410 F.3d 353, 358–59 (7th Cir. 2005)). On the present record, Thompson has

hardly met this standard. McAfee learned the facts of the case—or at least most of them—and

appears to have made a good-faith, albeit erroneous, estimate of the likely sentence.

        But the standard applied in Pough does not exclude the possibility that, considering the

uncertain operation of the sentencing guidelines, a good-faith but markedly erroneous estimate of

the likely sentence could be deemed objectively unreasonable. In this regard, Smith v. United

States is instructive:

        A criminal defendant has a right to expect at least that his attorney will review the
        charges with him by explaining the elements necessary for the government to
        secure a conviction, discuss the evidence as it bears on those elements, and
        explain the sentencing exposure the defendant will face as a consequence of
        exercising each of the options available. In a system dominated by sentencing
        guidelines, we do not see how sentence exposure can be fully explained without
        completely exploring the ranges of penalties under likely guideline scoring
        scenarios, given the information available to the defendant and his lawyer at the
        time.

Smith, 348 F.3d at 553. Competent representation thus demands that counsel explore the range

of penalties a defendant is facing under likely guidelines calculation scenarios as completely as

possible. “The failure of defense counsel to ‘provide professional guidance to a defendant

regarding his sentence exposure prior to a plea may constitute deficient assistance.’” Id. (quoting

Moss v. United States, 323 F.3d 445, 474 (6th Cir. 2003)). Because the record was unclear as to

whether Smith’s counsel had adequately explained his sentence exposure, the court vacated the

denial of § 2255 relief and remanded for an evidentiary hearing. Id. at 553–54.

        Here, given that McAfee knew of the likelihood of enhancement for shots fired at an

officer and admits that he did not completely explore the impact of an adverse finding on the

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Case No. 16-6531, Thompson v. United States


potential sentence—either in his own estimate or in his discussions with Thompson, his advice

arguably fell short of the “professional guidance” standard set forth in Smith. Here, as in Smith,

an evidentiary hearing would have permitted a fuller development of the facts, to fill the gaps left

by McAfee’s and Thompson’s affidavits. The district court’s determination that McAfee’s

representation was not objectively unreasonable thus appears to have been premature. Yet, the

court’s refusal to grant Thompson a fuller opportunity to show deficient performance is

immaterial unless he can also show that prejudice resulted—i.e., that the deficiency was a

“decisive factor” in his decision to plead guilty as charged. Pough, 442 F.3d at 966.

       2. Prejudice

       Even if McAfee’s miscalculation is presumed to satisfy the Strickland deficient-

performance prong, Thompson is not entitled to relief absent a showing of prejudice. Unlike the

Magana situation, and despite his miscalculation, McAfee did advise Thompson to accept the

plea offer. Thompson’s “injury” thus resulted most proximately from his disregard of counsel’s

advice. It can hardly be denied, however, that McAfee’s recommendation to accept the plea deal

would have been stronger had he more completely examined the potential sentence. Thompson

avers that he would have followed McAfee’s advice and accepted the government’s offer had he

been informed of his actual sentencing exposure. Thompson’s affidavit thus tends to support the

requisite showing of a reasonable probability that McAfee’s estimate was a decisive factor and

the outcome of the plea process would have been different if he had received competent

assistance.

       But what if there was no valid offer of a plea agreement? The district court remarked that

“[t]he greater weight of the evidence in the record suggests that the Government never offered

Thompson a valid plea agreement.” R. 38 (No. 2:13-cv-2737), Order at 29, Page ID 286. If true,



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Case No. 16-6531, Thompson v. United States


Thompson’s showing of prejudice would be severely undermined. The accuracy of the district

court’s characterization of the record, however, is questionable.

       Thompson’s affidavit states that the proposed 15-year plea agreement he ultimately

rejected had been approved by the government and reduced to writing at the time of the October

20, 2011 change-of-plea hearing.       McAfee’s affidavit acknowledges that there were plea

negotiations, but states only that the 15-year plea offer had not been approved in October 2011,

“as the guilty plea loomed,” when Thompson advised that he did not want to accept it. The

government has neither acknowledged nor disputed the existence of the plea offer, either in

preliminary or final approved form, and has offered no evidence or clarification of the status of

any plea offer at the time of the change-of-plea hearing.           Instead, the government attacks

Thompson’s affidavit as self-serving and otherwise unsubstantiated. This, essentially, is the sum

total of record evidence going to the existence of a proposed plea agreement.

       In sum then, Thompson’s sworn representation that he was presented a written and

approved copy of the 15-year plea agreement, albeit self-serving, stands unrefuted. Moreover, it

is partially corroborated by McAfee’s confirmation that there were negotiations involving a 15-

year plea deal that had not yet ripened into an approved agreement in the days leading up to the

change-of-plea hearing. The record is artificially truncated due to the denial of Thompson’s

motions for an evidentiary hearing and for discovery, but the weight of the extant evidence

actually favors a finding that there was a proposed agreement.

       The government insists that the district court made a finding of fact that cannot be

disturbed unless clearly erroneous. Not so. If the court had made a finding of fact, we would be

constrained to find clear error. Yet, though the district court’s characterization of the record is




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Case No. 16-6531, Thompson v. United States


inaccurate, its observation of what the evidence “suggests” hardly amounts to a “finding.” Let’s

consider the context of the observation. In the next paragraph of the opinion, the court reasoned:

       McAfee not only attempted to obtain a plea agreement for Thompson through
       negotiation with the Government, but counseled Thompson to accept an
       agreement if and when the Government approved one in light of sentencing range
       estimates he had made . . . .

Id. at 30, Page ID 287. The court then quoted at length from the plea colloquy—demonstrating

that Thompson understood the court could impose a sentence different from any estimate that

McAfee or any other person may have given him—before summarily concluding that Thompson

had failed to show McAfee’s performance was deficient.

       The district court’s observations are not irrelevant, but they have more to do with the

prejudice prong than the performance prong.        If there never was a valid plea offer, then,

irrespective of McAfee’s “gross misadvice” in estimating the sentence, Thompson would be

hard-pressed to show a reasonable probability that the outcome of the plea process would have

been different with competent advice. Yet, because the existing record is incomplete as to the

status of the plea offer at the time of Thompson’s plea, the district court could hardly make a

finding that there was no valid plea offer. The court was thus content to comment on what the

evidence suggests—to buttress conclusions it would draw from the plea colloquy. And these

conclusions, too, relate more to the prejudice prong than the performance prong.

       Indeed, as the government argues, the Sixth Circuit has consistently upheld the validity of

the plea-colloquy advisement of rights to preclude later claims of misunderstanding alleged to

result from misleading advice. Most recently, the court observed:

       When an ineffective-assistance claim is based on misleading information
       regarding the consequences of a plea, a proper plea colloquy is generally deemed
       to cure any misunderstanding the defendant may have had about the consequences
       of the plea. Ewing v. United States, 651 F. App’x. 405, 410 (6th Cir. 2016) (citing


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Case No. 16-6531, Thompson v. United States


       Ramos v. Rogers, 170 F.3d 560, 565 (6th Cir. 1999)). The court’s proper
       advisement of rights is thus deemed to “foreclose” any showing of actual
       prejudice attributed to counsel’s erroneous advice, because the defendant is
       deemed bound by his statements in response to the court’s inquiry. Id.
       Otherwise, the plea colloquy process would be rendered meaningless if a
       defendant could reopen the record by later asserting that actually, he
       misunderstood. Ramos, 170 F.3d at 566.

United States v. Pola, 703 F. App’x 414, 423 (6th Cir. 2017). This rule would appear to apply,

as Thompson alleges he misunderstood the potential consequences of his guilty plea due to

McAfee’s erroneous advice. The plea colloquy appears to have been proper, clear and thorough.

It establishes, based on Thompson’s own testimony under oath, that he understood the potential

penalties for the charged offenses; that he had discussed the sentencing guidelines with attorney

McAfee; and that the sentence ultimately imposed by the district court may be different from any

estimate given to him by McAfee, government counsel, or anyone else.

       But Thompson contends the plea colloquy rule does not apply. He cites a footnote in

Cadavid-Yepes v. United States, 635 F. App’x 291, 300 n.3 (6th Cir. 2016), for the proposition

that there are exceptions to the rule. The note contains only dicta, however, and does little to

help Thompson’s cause. In Cadavid-Yepes, the court faithfully applied the rule and noted that

recent Supreme Court opinions said to have abrogated the rule are actually consistent with it.

       Thompson nonetheless maintains that because McAfee’s misadvice pertained to a plea

deal distinct from the guilty plea he actually entered, the plea colloquy in the change-of-plea

hearing was ineffective to cure McAfee’s earlier misadvice. He cites Missouri v. Frye, 566 U.S.

134 (2012), as illustrative. The Cadavid-Yepes court addressed the argument as follows:

       [I]n Missouri v. Frye, Frye’s attorney never told Frye about a plea offer from the
       government and the offer expired. Frye later pleaded guilty without any plea
       agreement, unaware of the earlier offer. . . . Frye was never given a plea
       colloquy capable of curing his counsel’s deficient performance.


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Case No. 16-6531, Thompson v. United States


Cadavid-Yepes, 635 F. App’x at 300 n.3 (citations omitted). Because of the nature of Frye’s

counsel’s nonfeasance and Frye’s ignorance thereof, the colloquy advisement of rights could not

have the effect of curing or correcting Frye’s lack of knowledge.

       Here, in contrast, Thompson’s ineffective-assistance claim ultimately depends on his

showing that, but for McAfee’s erroneous estimate of the likely sentence if he pleaded guilty

without a plea agreement—which estimate McAfee undisputedly communicated and Thompson

considered before rejecting McAfee’s advice—there’s a reasonable probability that he would not

have pleaded guilty as charged. That is, Thompson’s claim hinges on his alleged reliance on

McAfee’s erroneous estimate. And in the plea colloquy conducted on October 20, 2011, as

Thompson proceeded to plead guilty without a plea agreement, the district court elicited

Thompson’s testimony that he understood the potential penalties, had discussed the guidelines

with McAfee, and understood the court could impose a sentence different from any estimate he

had been given by McAfee or anyone else. The plea colloquy thus establishes Thompson’s

understanding that McAfee’s estimate was not necessarily reliable; that it was the district court

that had authority to impose sentence in its discretion, under the law and the guidelines, after

considering the presentence report and the parties’ objections and arguments. Frye is thus

materially distinguishable.

       It follows that the colloquy’s advisement of rights may be deemed to have cured any

misunderstanding arising from McAfee’s miscalculation. But given the incompleteness of the

record, we are ill-equipped to reach that conclusion without knowing more, if possible, about the

nature and the cause of the misunderstanding. We do not fault Thompson for the sparse record

on this issue; the district court denied his motions to conduct discovery and for an evidentiary

hearing.



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Case No. 16-6531, Thompson v. United States


       C. Evidentiary Hearing

       In his alternative argument, Thompson contends the denial of his ineffective-assistance

claim was in error because it was premature. The ruling was premature, he argues, because the

undeveloped record is marked by unresolved questions of material fact. The district court denied

Thompson’s requests for discovery, for an evidentiary hearing, and for appointment of counsel

because it concluded that his ineffective-assistance claim failed as a matter of law. R. 38 (No.

2:13-cv-2737), Order at 34, Page ID 291. Thompson asks us to remand for an evidentiary

hearing to complete the record.

       The denial of an evidentiary hearing is reviewed for abuse of discretion. Arrendondo v.

United States, 178 F.3d 778, 782 (6th Cir. 1999). The burden, however, that Thompson must

bear to show entitlement to a hearing is “relatively light.” Valentine v. United States, 488 F.3d

325, 333 (6th Cir. 2007) (quoting United States v. Turner, 183 F.3d 474, 477 (6th Cir. 1999)).

“Unless the motion [for relief under § 2255] and the files and records of the case conclusively

show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing thereon .

. . .” 28 U.S.C. § 2255(b). “[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 v. United States, 734 F.3d 600, 607 (6th Cir. 2013)

(quoting Valentine, 488 F.3d at 334).

       As explained above, the existing record leaves fact questions unresolved. Thompson’s

affidavit sets forth a narrative that is neither contradicted by the record nor inherently incredible.

It is partially corroborated, not contradicted, by his attorney’s affidavit. We share the district

court’s skepticism about the notion that the government would offer such a generous 15-year



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Case No. 16-6531, Thompson v. United States


deal to a defendant who was essentially “caught in the act.” Yet, the government has not even

made “contrary representations,” much less adduced evidence, refuting Thompson’s affidavit.

Nor are we persuaded, at this stage, that the record conclusively shows that Thompson is entitled

to no relief. Under our precedents, analogous circumstances have been repeatedly held to

warrant a hearing. See e.g., Pola v. United States, 778 F.3d 525, 532–35 (6th Cir. 2015); Huff,

734 F.3d at 607–10; Valentine, 488 F.3d at 333–34; Smith, 348 F.3d at 550–54; Christopher v.

United States, 605 F. App’x 533, 537–38 (6th Cir. 2015). The same approach is appropriate

here, as Thompson has carried his “relatively light burden.”

       The district court’s denial of Thompson’s request for an evidentiary hearing was based on

an inaccurate assessment of an incomplete factual record resulting in premature conclusions of

law. Consequently, the court erred in its determination that the motion for an evidentiary hearing

was moot. Among the unresolved questions warranting further development: whether the

government offered a valid approved written 15-year plea agreement before Thompson entered

his guilty plea; what justification McAfee may provide for having failed to completely explore

the impact of the “shots fired” adjustment; and specific details regarding McAfee’s

recommendation that Thompson accept the government’s plea offer, rather than pleading guilty

as charged without a plea agreement. The answers to these and other questions could contribute

significantly to a fair assessment of both prongs of Thompson’s ineffective-assistance claim.

                                      III. CONCLUSION

        Accordingly, finding that the existing record presents unresolved fact questions going to

both the deficient-performance and prejudice prongs of Thompson’s ineffective-assistance-in-

plea-negotiations claim, and concluding that denial of Thompson’s request for an evidentiary

hearing was in error, the order denying Thompson’s § 2255 motion is VACATED only insofar



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Case No. 16-6531, Thompson v. United States


as it hinges on the issues certified in this appeal, and the case is REMANDED for an evidentiary

hearing limited to the issues addressed in this opinion.




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