                                                      NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                _______________

                                     No. 13-4769
                                   _______________

                           UNITED STATES OF AMERICA

                                           v.

                          MICHAEL NGUYEN, a/k/a Turtle,
                               a/k/a Mike, a/k/a M,

                                                       Appellant
                                   _______________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                       (D.C. Criminal No. 2-04-cr-00767-015)
                        District Judge: Hon. Paul S. Diamond
                                  _______________

                                  Argued June 8, 2015

                   BEFORE: AMBRO and COWEN, Circuit Judges
                             RESTANI,* Judge

                                 (Filed: July 20, 2015)




* Honorable Jane A. Restani, Judge for the United States Court of International Trade,
sitting by designation.
David E. Fritchey, Esq.
Bernadette A. McKeon, Esq. (Argued)
Robert A. Zauzmer, Esq.
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106

       Counsel for Appellee

Cheryl J. Sturm, Esq. (Argued)
387 Ring Road
Chadds Ford, PA 19317

       Counsel for Appellant
                                    _______________

                                      OPINION**
                                    _______________


COWEN, Circuit Judge.

       The petitioner-appellant, Michael Nguyen (“Petitioner”), has appealed the District

Court’s order denying his petition for habeas corpus pursuant to 28 U.S.C. § 2255

claiming ineffective assistance of counsel in connection with the plea bargaining process.

Because we conclude that denial was appropriate, we will affirm.

                                             I.

       Because we write solely for the parties, we will only set forth the facts necessary

to inform our analysis. While investigating the Benjamin Ton Drug Trafficking

_______________


** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

                                             2
Organization, individuals and documents identified Petitioner as a wholesale customer of

the organization. In June of 2005, Petitioner was subpoenaed to testify before a grand

jury in the Eastern District of Pennsylvania. He was appointed counsel for the limited

purpose of representing him in connection with that appearance. On advice of counsel,

Petitioner did not testify before the grand jury.

       By the end of August of 2005, five of the six defendants charged in the original

indictment had entered into cooperation agreements. The sixth defendant entered into a

cooperation agreement in September 2005. On September 14, 2005, a superseding

indictment was issued, adding numerous charges and twenty new defendants, including

Petitioner. On September 29, 2005, at his initial appearance, Petitioner pled not guilty

and requested the appointment of counsel. The court appointed John Griffin.

       Between September 2005 and August 2006, 21 of the 26 co-defendants charged in

the first superseding indictment pled guilty. The grand jury returned a second

superseding indictment on August 23, 2006, adding one new defendant and consolidating

the charges pending against the remaining five co-defendants, including Petitioner.

During this time, Petitioner was represented by Griffin.

       Petitioner’s Motion to Dismiss His Counsel

       On September 8, 2006, Petitioner asked the District Court to terminate Griffin’s

representation and appoint new counsel due to his attorney’s alleged failure to keep him

adequately apprised of the status of his case. Petitioner alleged in his motion that

September 29, 2005, the date of his arraignment, was the first and last occasion he “met,


                                              3
spoke with or communicated in any form with Mr. Griffin.” (App. 312.) The District

Court held a hearing on Petitioner’s motion to dismiss his counsel, at which Petitioner

acknowledged that he had met with Griffin on the Monday before the hearing, but

reiterated his frustration with his counsel and asserted that the visit was the first time the

two had met since his arraignment. Griffin also testified, but chose not to specifically

address Petitioner’s complaints. Rather, he simply noted that he had “just recently

received discovery,” and that he had met with Petitioner to discuss it. (App. 318.)

Griffin’s brief testimony indicated that when he had spoken to Petitioner a few days

earlier, he believed they were ready to move forward, but that if Petitioner wanted new

counsel, he would “respect whatever the position the Court wants to make on this.” (Id.)

The District Court advised Petitioner that a change in counsel could delay his trial, but

given Petitioner’s insistence on new counsel, the District Court granted the motion and

subsequently appointed Steven Laver in December 2006 to represent him. Laver

represented Petitioner through to completion of his trial.

       Petitioner’s Trial and Conviction

       Petitioner’s trial commenced in August 2007. He was ultimately convicted of

conspiracy to distribute 100 kilograms or more of marijuana and convicted of possession

with intent to distribute 50 pounds of marijuana, 100 pounds of marijuana, and 24 pounds

of marijuana. On May 12, 2008, Petitioner was sentenced to a term of 262 months’

imprisonment consecutive to the undischarged term of imprisonment. We affirmed that

conviction and sentence in an unpublished opinion. On October 16, 2010, Petitioner


                                               4
filed a counseled motion pursuant to 28 U.S.C. § 2255 claiming ineffective assistance of

counsel in connection with the plea bargaining process.

       Petitioner’s § 2255 Motion

       Petitioner’s motion raised several grounds of ineffective assistance, including that

trial counsel failed to “provide reasonably accurate advice concerning all aspects of the

case,” including a candid estimate of the probable outcome, the probable outcome of

alternative choices, the maximum and minimum sentences that could be imposed, and

what sentence was likely. (App. 72.) Although the initial motion did not clearly

distinguish between Griffin and Laver, Petitioner has not appealed any of his claims

against Laver and those claims are not before us.

       The District Court held an evidentiary hearing on Petitioner’s motion. In addition

to Petitioner’s counsel who had been appointed in connection with his grand jury

appearance, Petitioner, Griffin, and Assistant United States Attorney David Fritchey all

testified.

       The District Court’s Denial of the § 2255 Motion

        In considering the habeas petition, the District Court “largely discredit[ed] the

testimony of [Petitioner],” and credited the testimony of Griffin and Fritchey. (App. 5.)

Under the circumstances presented, the Court concluded that Petitioner had not been

constructively denied counsel during a critical stage of his proceedings, refused to apply

the standard in United States v. Cronic, 466 U.S. 648 (1984), and instead analyzed

Petitioner’s claims under the standard in Strickland v. Washington, 466 U.S. 668 (1984).


                                              5
Finding that Petitioner could not meet the latter standard, the District Court denied the

petition and declined to issue a certificate of appealability (“COA”). Petitioner appealed,

and we granted Petitioner a COA only as to his claim that he was constructively denied

the right to be represented by effective counsel during a time when plea negotiations

could have taken place.

                                             II.

       Petitioner asserts that Griffin abandoned him during a critical stage of his

proceedings and that his case is therefore governed by the standard in Cronic. We

decline to apply Cronic and instead apply the standard announced in Strickland.

       Application of the Cronic Standard

       In United States v. Cronic, counsel representing the defendant was given only 25

days to prepare for trial even though the Government had taken four and a half years to

investigate and had reviewed thousands of documents. The defendant was convicted and

the Sixth Circuit reversed, inferring that the defendant’s Sixth Amendment right had been

violated. Cronic, 466 U.S. at 649-52. The Supreme Court disagreed that the inference

was warranted in that case, but identified three circumstances where reversal of a

conviction under the Sixth Amendment is required “without inquiring into counsel’s

actual performance or requiring the defendant to show the effect it had on the trial.” Bell

v. Cone, 535 U.S. 685, 695 (2002).

       As the Supreme Court reiterated in Bell v. Cone, the three circumstances are as

follows: (1) circumstances involving the complete denial of counsel at a critical stage in


                                             6
the proceedings, (2) where “counsel entirely fails to subject the prosecution’s case to

meaningful adversarial testing,” and (3) where counsel is called upon to render assistance

under circumstances where competent counsel very likely could not. Id. at 695-96.

Here, Petitioner argues that he was effectively denied counsel at a critical stage in his

proceedings.

       As an initial matter, we conclude that the District Court’s findings regarding the

adequacy of Griffin’s representation were not clearly erroneous. The District Court

credited Griffin’s testimony, discredited Petitioner’s, and we discern nothing in the

record that would warrant us substituting our own judgment for either credibility

determination. See Ross v. Varano, 712 F.3d 784, 796 (3d Cir. 2013) (“applying the

clear error standard of review . . . an appellate court ordinarily accepts a district court’s

credibility determinations.” ). Moreover, the District Court found as follows: (1) that

Griffin had several discussions with Petitioner early in the representation about pleading

guilty, (2) that Petitioner had made it clear to Griffin that he was not interested in

entering into any kind of plea agreement or negotiations, (3) that Griffin was certain that

Petitioner wanted to go to trial and recalled his refusal to plead guilty, and (4) that, at the

time Griffin ended his representation, he had never received any indication that Petitioner

wanted to do anything other than go to trial. These factual findings are each supported

by the record and Griffin’s specific testimony.

       Because Griffin’s credited testimony establishes that he discussed with Petitioner

the possibility of pleading, the advantages that accompany it, and met with him to discuss


                                               7
the Government’s discovery when he received it, Petitioner has not demonstrated

abandonment such that are we are persuaded to apply Cronic. The cases relied on by

Petitioner do not convince us otherwise.

       In Appel v Horn, 250 F.3d 203, 214 (3d Cir. 2001), we applied Cronic to a claim

of constructive denial of counsel to a state court defendant at his competency hearing.

But in Appel, despite the fact that the petitioner’s counsel had been assigned to represent

him by the Public Defender, the petitioner had informed them that he wished to represent

himself and did not want them to represent him. Indeed, even after the state trial court

denied the petitioner’s waiver of counsel, the petitioner’s assigned counsel continued to

refuse to act as defendant’s counsel. The District Court, on habeas review, concluded

that despite their obligation to act as counsel at the petitioner’s competency hearing, the

record was undisputed that they had failed to do so. Id. at 215. We agreed. “In short,

attorneys Kraft and Crowe, because they did not believe they were counsel, never

conducted any investigation; did not provide Dr. Schwartz or the court with any

information about [the petitioner]; and did not attempt to litigate the competency

determination in any way.” Id. (all emphases in original). Accordingly, we concluded

that there was “ample support for the District Court’s conclusion that Kraft and Crowe

abandoned their duty to both the court and their client when they decided not to conduct

any investigation on [the petitioner’s] competency.” Id. (internal quotation marks and

citation omitted). In contrast, no such complete abandonment occurred here.

       Nor is Petitioner aided by the Sixth Circuit’s decision in Mitchell v. Mason, 325


                                              8
F.3d 732, 742 (6th Cir. 2003). In Mitchell, the petitioner complained that he had not

seen or talked to his lawyer in the five months leading up to trial, and that his counsel

was suspended for the month immediately preceding trial. Id. at 742. The trial judge

postponed a decision on the petitioner’s motion until a time when his counsel could

appear. Then, on the second day of jury selection, the court revisited the issue of the

petitioner’s request for new counsel. Id. at 735-36. At that time, the petitioner’s counsel

testified at length, but did not dispute the substance of the petitioner’s assertions. The

court concluded that Cronic applied and that the petitioner had been completely denied

counsel at a critical stage. Id. at 744.

       Mitchell is easily distinguished from this case. First and foremost, in Mitchell,

because his attorney was suspended for the 30 days before his trial, the petitioner was

actually completely denied counsel for a period of time prior to his trial. Although the

Sixth Circuit noted that this fact “does not decide this case” such that an attorney’s

suspension would lead to an automatic application of Cronic, “it does contribute to the

weight of the evidence that demonstrates that there was no consultation between [the

petitioner] and his attorney prior to trial.” Id. at 747. There obviously was no such

period of actual non-representation in this case.

       Second, in Mitchell, the petitioner indicated that following his bail hearing, his

attorney had not visited him once in prison and that he had not had the opportunity to

speak to him in court until his lawyer next represented him at the final conference four

months later. Id. at 735. Here, although Petitioner arguably did not speak to his attorney


                                              9
for a longer period of time, Petitioner’s case, which was designated complex, appears to

have been advancing more slowly. It is not the case that Petitioner saw Griffin at his bail

hearing and then did not see or hear from him again until the final pre-trial conference.

Rather, Griffin, upon receiving discovery from the Government, met with Petitioner to

review it and to again discuss the status of his case.

       On the factual record before us, and in light of the District Court’s decision to

credit Griffin’s testimony over Petitioner’s, Petitioner has not demonstrated that he was

constructively denied counsel during the pre-trial period. As we conclude that Cronic

does not apply, we turn to an analysis of Petitioner’s claims under the Strickland

standard.

       Application of the Strickland Standard

       Strickland requires Petitioner to show the following: (1) that his attorney’s

representation was unreasonable under “prevailing professional norms,” and (2) that but

for the deficiency in representation, there was a reasonable probability that the “result of

the proceeding would have been different.” Strickland, 466 U.S. at 688, 694. Petitioner

cannot meet this standard.

       Petitioner cannot establish that he suffered any prejudice as a result of Griffin’s

alleged ineffectiveness. Because Griffin was replaced by Laver, against whom Petitioner

has chosen not to appeal his claim of ineffective assistance, his claim is limited to the

argument that he was denied an opportunity to plead or cooperate during the time Griffin

represented him as a result of Griffin’s ineffective assistance. But to establish prejudice,


                                              10
Petitioner must begin by proving that a plea agreement was formally offered by the

Government. See Kingsberry v. United States, 202 F.3d 1030, 1032 (8th Cir. 2000)

(holding, in the context of an ineffective assistance of counsel claim, that to establish

prejudice, the petitioner must begin by proving that a plea agreement was formally

offered by the Government).

       Here, however, it is undisputed that while Fritchey testified he spoke to Griffin

several times, the Government never made any formal offer. Moreover, even if Petitioner

could demonstrate that the Government offered a plea bargain or a cooperation

agreement – which of course he cannot – there is insufficient evidence that Petitioner

would have taken it. Griffin testified, credibly according to the District Court, that

Petitioner was resolute in his opposition to accepting any kind of offer. And Fritchey

testified that Laver informed him that Petitioner “thought he had a defensible case, and he

wanted to go to trial.” (App. 278.) On this record, Petitioner’s speculation that had he

known the potential prison sentence he faced, he would have accepted a guilty plea or

cooperation deal – offers that were never made and therefore never his to accept – is

simply insufficient to establish prejudice under Strickland.

                                             III.

       In light of the foregoing, the order of the District Court entered on November 5,

2013, will be affirmed.




                                             11
