           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                      2       Guerrero v. United States                       No. 03-5886
        ELECTRONIC CITATION: 2004 FED App. 0306P (6th Cir.)
                    File Name: 04a0306p.06                              Harold B. McDonough, ASSISTANT UNITED STATES
                                                                        ATTORNEY, Nashville, Tennessee, for Appellee.
                                                                        ON BRIEF: Caryll S. Alpert, FEDERAL PUBLIC
UNITED STATES COURT OF APPEALS                                          DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant.
                                                                        Harold B. McDonough, William Cohen, ASSISTANT
                  FOR THE SIXTH CIRCUIT                                 UNITED STATES ATTORNEYS, Nashville, Tennessee, for
                    _________________                                   Appellee.

 LUIS CARLOS GUERRERO ,           X                                                            _________________
           Petitioner-Appellant, -
                                   -                                                               OPINION
                                   -   No. 03-5886                                             _________________
            v.                     -
                                    >                                      JOHN D. HOLSCHUH, District Judge. Petitioner Luis
                                   ,                                    Carlos Guerrero was convicted of nine charges of cocaine
 UNITED STATES OF AMERICA , -
          Respondent-Appellee. -                                        trafficking and sentenced to 175 years in prison. Pursuant to
                                                                        28 U.S.C. § 2255, he moved to vacate his sentence, claiming
                                  N                                     that he was denied the effective assistance of trial counsel
       Appeal from the United States District Court                     because his attorney failed to communicate a plea offer to
    for the Middle District of Tennessee at Cookeville.                 him. Guerrero appeals from the district court’s order denying
  No. 97-00040—William J. Haynes, Jr., District Judge.                  his motion to vacate his sentence. For the reasons set forth
                                                                        below, we AFFIRM the district court’s order.
                      Argued: June 8, 2004
                                                                                                           I.
            Decided and Filed: September 9, 2004
                                                                          On February 17, 1988, Luis Carlos Guerrero, a native of
         Before: BOGGS and MOORE, Circuit Judges;                       Honduras, was indicted in federal court on nine counts,
                 HOLSCHUH, District Judge.*                             including conspiracy to import and distribute cocaine,
                                                                        possession with intent to distribute more than a kilogram of
                      _________________                                 cocaine, and distribution of cocaine. At his first trial, held in
                                                                        June of 1988, Guerrero was represented by John O’Donnell,
                           COUNSEL                                      an experienced criminal defense attorney, and by attorney
                                                                        Francis Clarke. After the jury failed to reach a verdict, the
ARGUED: William J. Steed III, FEDERAL PUBLIC                            court declared a mistrial. Guerrero was re-tried in July of
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant.                 1988.1 This time, the jury convicted him of all nine counts.

                                                                            1
    *
                                                                              Just prior to the second trial, the gov ernment filed a motio n to
     The Honorable John D. Holschuh, United States District Judge for   disqualify defense counsel. This motion was based on the governm ent’s
the Southern District of Ohio, sitting by designation.                  stated intention to call a co-defendant to testify about a m eeting with

                                 1
No. 03-5886                           Guerrero v. United States          3   4    Guerrero v. United States                    No. 03-5886

On August 29, 1988, the district court imposed a prison                      The motion included a claim, among others, that O’Donnell
sentence of 175 years and fines totaling more than $2                        had failed to advise him of a plea offer. In support of this
million.2                                                                    claim, Guerrero submitted his wife’s affidavit concerning her
                                                                             alleged conversation with O’Donnell. In response, the
   Guerrero served the first nine years of his sentence at a                 government submitted O’Donnell’s affidavit, in which he
federal prison in Memphis, Tennessee. While he was there,                    stated that he no longer had the case file and did not
he exchanged letters with his wife, Nancy, but she visited him               remember any plea offer, but that it was his practice to
only once. In March of 1997, he was transferred to a prison                  communicate all plea offers to his clients.
in Miami, Florida so that he could be closer to his family. He
alleges that shortly thereafter Nancy told him that, after the                 In an order dated March 4, 1999, the district court refused
second trial, O’Donnell told her that the government had                     to consider most of the ineffective assistance of counsel
made a plea offer, but O’Donnell had not conveyed the offer                  claims, noting that Guerrero had the opportunity to assert
to Guerrero because O’Donnell “didn’t think much of it.”                     them on direct appeal but had failed to do so. The only
Based, in part, on this new information, in 1997 Guerrero                    portion of Guerrero’s ineffective assistance of counsel claim
filed a motion to vacate his sentence under 28 U.S.C. § 2255.3               that the district court addressed was his claim that O’Donnell
                                                                             had failed to inform him of O’Donnell’s own prior conviction
  The motion alleged that O’Donnell’s performance had been                   for possession of cocaine. Citing Strickland v. Washington,
deficient in a number of ways, in violation of Guerrero’s right              466 U.S. 668 (1984), the court found that while O’Donnell’s
to the effective assistance of counsel under the Sixth and                   failure to disclose this conviction may have constituted
Fourteenth Amendments to the United States Constitution.                     deficient performance, Guerrero had failed to show that this
                                                                             prejudiced his defense. The district court therefore denied
                                                                             Guerrero’s motion to vacate his sentence.
O’D onne ll and the anticipated need for O’Do nnell and Clarke to take the      This court subsequently issued a certificate of appealability
stand to rebut that testimony. It was eventually decided that O’D onne ll
would represent Guerrero and Clarke would act as a “case agent” who
                                                                             with respect to Guerrero’s claim that O’Donnell had failed to
would testify if neede d. On direc t appeal, we rejected G uerrero’s claim   tell him of an alleged plea offer, noting that this alleged
of ineffective assistance of counsel based on a potential conflict of        ineffective assistance of counsel claim was based on a
interest. See United States v. Gu errero, No. 88-5986, 1990 WL 166414        different ground for relief than that which had been
(6th C ir. No v. 1, 19 90)(per curiam ).                                     previously considered on direct appeal. Based on the
    2                                                                        conflicting affidavits submitted by O’Donnell and Mrs.
     The district judge imposed a sentence of 20 years on ea ch of 8         Guerrero, we vacated the district court’s decision with respect
counts and 15 years on 1 count, all sentences to run co nsecutively.
                                                                             to this one claim and remanded the case for further
    3                                                                        proceedings on that claim. See United States v. Guerrero,
        28 U .S.C. § 225 5 provides, in relev ant part:
                                                                             No. 99-5735, 2001 WL 1298843 (6th Cir. Aug. 7, 2001).
    A prisoner in custody under sentence of a court established by
    Act of Congress claiming the right to be released upon the                 On remand, Judge Aleta Trauger of the United States
    ground that the sen tence was imposed in violation of the                District Court for the Middle District of Tennessee conducted
    Constitution or laws of the United States . . . may move the court       an evidentiary hearing to determine whether a plea offer had
    which imposed the sentenc e to vacate, set aside o r correct the         been extended to Guerrero. At that hearing, held on June 17,
    sentence.
No. 03-5886                   Guerrero v. United States       5    6       Guerrero v. United States                        No. 03-5886

2002, Mrs. Guerrero testified that immediately after the              The government then called O’Donnell as a witness.4
second trial she asked O’Donnell why her husband had not           When asked if the government, at any time, offered a plea
been offered a plea agreement like the ones that had been          bargain to Guerrero, O’Donnell replied, “I don’t remember
offered to the co-defendants. She stated that O’Donnell            one way or the other.” J.A. at 102. However, he stated that
replied that the government had made an offer, but he did not      if an offer had been made, he “would have conveyed it in
tell Guerrero about it because it was not a good offer, and he     some manner to Mr. Guerrero,” because it was his practice to
knew that Guerrero would not accept it. Mrs. Guerrero              convey all offers, good or bad, to his clients. J.A. at 103-104.
testified that she did not ask what the offer was, and             He admitted that it was not uncommon for defendants in drug
O’Donnell did not volunteer that information. She also             cases to negotiate plea bargains, and that it would have been
testified that, although she was upset that O’Donnell had not      his usual practice to approach the government about the
told her husband about the alleged plea offer, she did not tell    possibility. He also noted, however, that sometimes the
her husband about this conversation until mid-May of 1998,         government was simply not interested in negotiating, and this
nearly ten years after he was convicted. She explained that        could have been one of those cases.
because her husband had been in Memphis and she had been
able to visit him only once, she had not had the occasion to          O’Donnell testified that he does not remember discussing
discuss it with him prior to that date. Mrs. Guerrero also         the possibility of a plea agreement with Guerrero. Neither did
testified that, after she told her husband about the plea offer,   he remember having a conversation with Mrs. Guerrero about
he sent the affidavit to her. Although she remembers signing       a plea offer. He testified that her claim – that he told her that
it and sending it back to him, she does not remember having        he did not communicate a plea offer to Guerrero – would have
her signature notarized.                                           been inconsistent with his general practice. On cross-
                                                                   examination, O’Donnell admitted that it was possible that a
  At the same hearing, Guerrero testified that his attorneys       plea offer had been extended to Guerrero; he simply did not
never discussed a possible plea bargain with him. He was led       remember. Likewise, he could not say for certain that he did
to believe that any discussions concerning the possibility of      not discuss a plea offer with Mrs. Guerrero; again, he simply
cooperating with the government in exchange for a more             did not remember. O’Donnell no longer had Guerrero’s case
lenient sentence had to be initiated by the government.            file, and attempts to locate it had been unsuccessful.
Guerrero also stated that if a plea had been offered, he would
have considered taking it. During the first trial, his attorneys     Harold McDonough, the Assistant United States Attorney
told him that he could be sentenced to up to 180 years in          who prosecuted the case at both trials, also testified at the
prison, yet they encouraged him to go to trial because they        hearing. McDonough testified that he had no recollection of
believed that he would win. After the first trial ended in a       any settlement discussions or plea offer, and there was no
mistrial, they told him not to worry because, even if he lost      documentation in his files to support a finding that such an
the second trial, they had grounds to appeal.                      offer had been made. He stated that if a plea offer had been
                                                                   made, he would have remembered; he also believed that he
                                                                   would have made some notation in the file. McDonough


                                                                       4
                                                                         Francis Clarke, co-defense counsel at the first trial, died several
                                                                   years before the evid entiary he aring.
No. 03-5886                        Guerrero v. United States   7   8      Guerrero v. United States                   No. 03-5886

testified that the government would not have agreed to an          to her husband. Furthermore, although Mrs. Guerrero’s
Alford plea, in which Guerrero would have been permitted to        affidavit appeared to have been notarized, she testified that
plead guilty while maintaining his innocence.5 McDonough           she did not remember having it notarized. Judge Haynes
also testified that it was unlikely that the government would      considered Mrs. Guerrero’s testimony and also the testimony
have offered a plea bargain, since it was believed that            of John O’Donnell, Harold McDonough, and Allen Brown.
Guerrero was a ringleader in the narcotics trafficking             The court stated:
conspiracy and had testified untruthfully at the first trial.
                                                                       John O’Donnell does not recall the statement, but given
  The final witness was Allen Brown, the Drug Enforcement              the defense trial strategy and Guerrero’s insistence on his
Administration (“DEA”) investigator assigned to the case. He           innocence, that [sic] Court concludes that it seems
testified that he was present for both of Guerrero’s trials.           unlikely that the subject would have come up.
Brown testified that if there had been plea negotiations, he           McDonough, the prosecutor in this case, does not recall
would have been consulted. According to Brown, there was               any such plea offer and the lead agent states that the
no discussion of a plea in this case, and defense counsel never        Government never approached Guerrero . . . about a plea.
raised the subject. He stated, “[t]here were no plea
negotiations; I know that to be a fact.” J.A. at 149.              J.A. at 31. The court also noted that it was unlikely that a
                                                                   plea offer would have been extended since: (1) Guerrero was
  At the end of the hearing, Judge Trauger recused herself         at the top of the cocaine distribution ring, and the government
from the case. She stated that she had not realized that           had already entered into plea agreements with several co-
McDonough would be testifying at the hearing. Since she            defendants; (2) Guerrero insisted that he was innocent; and
had once been his supervisor at the United States Attorney’s       (3) the government believed that Guerrero had testified
office, she believed that it would be improper for her to weigh    untruthfully at the first trial. Judge Haynes found that
his credibility against that of the other witnesses. The case      Guerrero had failed to establish, by a preponderance of the
was then assigned to Judge William Haynes. The parties             evidence, that the government had extended a plea offer. He
agreed that there was no need for another evidentiary hearing,     therefore denied Guerrero’s motion to vacate his sentence.
and that Judge Haynes could issue a decision based solely on
the hearing transcript.                                                                            II.

  In an Order and Memorandum dated June 24, 2003, Judge               Guerrero now appeals from Judge Haynes’s order denying
Haynes denied Guerrero’s motion to vacate his sentence. In         his motion to vacate his sentence. This court has jurisdiction
the Memorandum, the court initially observed that because a        to review the district court’s order pursuant to 28 U.S.C.
defendant has the sole authority to decide whether to plead        § 2253(a). While we review de novo a district court’s denial
guilty, a defense attorney has a legal duty to disclose all plea   of a § 2255 motion, the factual findings made by the district
offers made. The court noted, however, that the only               court in determining whether a petitioner has established
evidence of a plea offer in this case came from Mrs. Guerrero,     ineffective assistance of counsel are reviewed for clear error.
who apparently waited ten years to disclose this information       See Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003);
                                                                   Thompson v. United States, No. 02-5564, 2004 WL 193162
                                                                   at **3 (6th Cir. Jan. 30, 2004)(citing McQueen v. Scroggy, 99
   5                                                               F.3d 1302, 1310 (6th Cir. 1996)). See also Kinnard v. United
       See Alford v. North Carolina, 400 U.S. 25 (19 70).
No. 03-5886                   Guerrero v. United States       9    10    Guerrero v. United States                   No. 03-5886

States, 313 F.3d 933, 935 (6th Cir. 2002)(“On federal habeas         credibility of witnesses; it also reflects and preserves the
corpus review, the appeals court reviews the district court’s        proper relationship between trial courts and courts of
legal conclusions de novo and its factual findings for clear         appeal.
error.”).
                                                                   Id. (citations omitted).
  Although not raised as an issue in his briefs, counsel for
Guerrero stated during oral argument that in this case the           The decisions of this Court, however, were not in complete
district court’s factual findings should be given less deference   agreement on this issue in 1981. The same year Jabara was
than clear error because Judge Haynes did not conduct the          decided, this Court, in Lydle v. United States, 635 F.2d 763
evidentiary hearing and did not have the opportunity to judge      (6th Cir. 1981) said:
the demeanor of the witnesses. Counsel contended that, under
these circumstances, the district court’s factual findings           The major rationale for deferring to district court
should be subject to de novo review.                                 findings which are not clearly erroneous is that the
                                                                     district court is able, as we are not, to observe the
   The same argument was made and rejected, however, in              demeanor of witnesses. Where the trier of fact has
United States v. Jabara, 644 F.2d 574 (6th Cir. 1981), which         observed no witnesses, the “clearly erroneous” test is
involved an appeal by the government from a finding of fact          inapplicable.
made by the district court on a record that did not involve any
hearing or oral testimony. The government argued that              Id. at 766 n.1. (citations omitted). See also K&M Joint
because there was no oral testimony below, the court of            Venture v. Smith Int’l, Inc., 669 F.2d 1106, 1119 n.8 (6th Cir.
appeals had “the same ‘cold’ record upon which the trial court     1982)(Holschuh, J., concurring in part and dissenting in
based its decision,” id. at 577, and therefore the court of        part)(citing Sixth Circuit cases that have followed the
appeals should review the record de novo to determine              approach set forth in Jabara).
whether the district court’s factual finding was supported by
the record. This Court pointed out that Rule 52(a) of the            The division of authority in this Circuit was mirrored on a
Federal Rules of Civil Procedure provides that an appellate        national level by a conflict of authority among the circuits.
court must not set aside findings of fact of the district court    To resolve this conflict, Rule 52(a) was amended in 1985 to
unless those findings are clearly erroneous, and that “[t]his      provide that:
standard applies notwithstanding the fact that the appellate
record may consist entirely of documentary evidence.” Id.            Findings of fact, whether based on oral or documentary
(citations omitted). The Court further noted that while the          evidence, shall not be set aside unless clearly erroneous,
corresponding rule in criminal cases, Rule 23(c), does not           and due regard shall be given to the opportunity of the
specify a standard of appellate review, the clearly erroneous        trial court to judge the credibility of the witnesses.
test has also been applied with reference to findings of fact in   The Advisory Committee, in explaining the rationale for the
criminal proceedings. The Court set forth the basis for the        amendment, said:
clearly erroneous test as follows:
                                                                     To permit courts of appeal to share more actively in the
  The “clearly erroneous” test does not derive solely from           fact-finding function would tend to undermine the
  the trial judge’s superior opportunity to assess the               legitimacy of the district courts in the eyes of litigants,
No. 03-5886                     Guerrero v. United States        11    12       Guerrero v. United States                        No. 03-5886

  multiply appeals by encouraging appellate retrial of some            why Rule 52(a) should not be applied in § 2255 cases.6 The
  factual issues, and needlessly reallocate judicial                   fundamental rationale for Rule 52(a) – as set forth in Jabara
  authority.                                                           and the Advisory Committee’s note – applies with equal force
                                                                       to appeals from the district court’s findings of fact in § 2255
Fed. R. Civ. P. 52(a) Advisory Committee’s notes.                      cases as it does in appeals from the district court’s findings of
                                                                       fact in other civil cases.
   It is interesting to note that the appellant in the present case,
Luis Carlos Guerrero, while serving the sentence in question,             Having determined that the “clearly erroneous” standard of
filed a lawsuit against Francis White in the Middle District of        review applies to the district court’s finding of fact that the
Tennessee, and raised the same issue as he does in the present         government did not make a plea offer to Guerrero’s counsel,
case. In Guerrero v. White, No. 98-6342, 1999 WL 1282481               the final step is to apply that standard to the evidence in this
(6th Cir. Dec. 28, 1999), he appealed an adverse judgment on           case. “A finding is ‘clearly erroneous’ when, although there
findings of fact and conclusions of law. With reference to the         is evidence to support it, the reviewing court on the entire
standard of review, this Court said:                                   evidence is left with the definite and firm conviction that a
                                                                       mistake has been committed.” United States v. United States
  Guerrero urges us to review the district court’s findings            Gypsum Co., 333 U.S. 364, 395 (1948). The burden is on the
  and the denial of his post-trial motion de novo because              appellant to prove that a finding is clearly erroneous; this
  the decision was based principally upon his deposition               requires more than a showing of conflicting testimony. See
  and other documentary evidence. While some federal                   Harrison v. Monumental Life Ins. Co., 333 F.3d 717, 722 (6th
  courts took this approach prior to 1985, the amendments              Cir. 2003).
  to Fed.R.Civ.P. 52(a) settled the question and provide
  that “[f]indings of fact, whether based on oral or                                                     III.
  documentary evidence, shall not be set aside unless
  clearly erroneous, and due regard shall be given to the                Strickland v. Washington, 466 U.S. 668 (1984), sets forth
  opportunity of the trial court to judge the credibility of           the relevant standard for determining whether a criminal
  the witnesses.” Further, we are bound to accept the                  defendant has received ineffective assistance of counsel. In
  factual inferences drawn by the trial court from                     order to obtain habeas relief based on ineffective assistance of
  undisputed facts unless they are clearly erroneous. See              counsel, a petitioner must show that: (1) counsel’s
  Commissioner v. Duberstein, 363 U.S. 278, 291 (1960).                performance was deficient; and (2) counsel’s deficient
                                                                       performance prejudiced the defense. Id. at 687.
Guerrero, 1999 WL 1282481 at **2.
                                                                         To satisfy the first prong of Strickland, a petitioner must
  In the present case, the parties agreed that a decision could        show that his attorney’s performance fell below what would
be made by Judge Haynes based solely on the transcript of the
hearing held by Judge Trauger. For the purpose of deciding
which standard of review applies to Judge Haynes’s findings                 6
                                                                             Rule 12 of the Rules Governing Section 2255 Proceedings for the
of fact, we find no distinction between a transcript of                United States D istrict Courts specifically provides that a district court
testimony in a hearing and a “deposition and other                     “may apply the Federal Rules of Criminal Procedure or the Federal Rules
documentary evidence.” Id. Furthermore, there is no reason             of Civil Procedure, whichever it deems most appropriate, to motions filed
                                                                       under these rules.”
No. 03-5886                    Guerrero v. United States       13    14   Guerrero v. United States                   No. 03-5886

be considered objectively reasonable. Id. at 687-88. The               There is admittedly some evidence to support a finding that
Sixth Circuit has previously held that a defense attorney’s          the government did extend a plea offer to Guerrero, and that
failure to communicate a plea offer to his or her client             O’Donnell failed to communicate it to him. At the
constitutes deficient performance as a matter of law. See            evidentiary hearing, Guerrero testified that O’Donnell never
Griffin v. United States, 330 F.3d 733, 737 (6th Cir. 2003).         discussed the possibility of a plea agreement with him. Mrs.
Therefore, if Guerrero could show that the government                Guerrero testified that after her husband was convicted,
extended a plea offer that O’Donnell failed to communicate           O’Donnell told her that the government had made a plea offer
to him, he would have established the first prong of the             but that he decided not to tell Guerrero about it because he
Strickland test. With respect to the second prong of                 “didn’t think much of it.” J.A. at 39. O’Donnell conceded
Strickland, a petitioner may establish the requisite prejudice       that Mrs. Guerrero might be correct; he simply did not
by demonstrating a “reasonable probability” that if he had           remember one way or another whether a plea offer had been
been notified of the plea offer, he would have accepted it. Id.      made. He conceded that it was his practice to engage in plea
See also Magana v. Hofbauer, 263 F.3d 542, 547-48 (6th Cir.          negotiations with the government. He also acknowledged
2001); Turner v. Tennessee, 858 F.2d 1201, 1206 (6th Cir.            that he had withheld other information from Guerrero,
1988), vacated on other grounds, 492 U.S. 902 (1989),                including disclosure of his own arrest for possession of
reinstated on other grounds, 940 F.2d 1000, 1002 (6th Cir.           cocaine. Guerrero contends that O’Donnell’s failure to
1991).                                                               disclose this information makes it more likely that he also
                                                                     failed to convey the alleged plea offer.
  On appeal, Guerrero argues that he was denied effective
assistance of counsel due to O’Donnell’s failure to inform              There is, however, a great deal of evidence to support a
him of the alleged plea offer. He further claims that if             finding that no plea offer was ever made. Allen Brown, the
O’Donnell had conveyed the alleged offer to him, there is a          DEA Agent who participated in both trials, testified that if a
reasonable probability that he would have accepted it. The           plea offer had been made, he would have known about it. He
threshold issue in this case, of course, is whether the              stated, “[t]here were no plea negotiations; I know that to be a
government ever extended a plea offer to Guerrero through            fact.” J.A. at 149. Likewise, Assistant United States
O’Donnell. This is a purely factual issue. The district court        Attorney Harold McDonough testified that he would have
made the factual finding that no such offer had been made.           remembered if a plea offer had been extended and probably
                                                                     would have made some notation in the file. He did not
  On consideration of the entire record, including the ten-year      remember any settlement discussions, and there was no
delay in the assertion of this claim and the transcript of the       documentation in the file indicating that a plea offer had been
testimony of all witnesses who testified at the evidentiary          made.       McDonough also testified that, because the
hearing, we are not left “with the definite and firm conviction      government believed that Guerrero was one of the kingpins in
that a mistake has been committed.” We find, therefore, that         the cocaine distribution ring and had testified untruthfully at
the district court’s finding of fact regarding the alleged plea      the first trial, it was unlikely that the government would have
offer was not clearly erroneous.7                                    extended a plea offer to him.
                                                                       O’Donnell testified that it was his practice to attempt to
    7                                                                negotiate a plea bargain. However, he explained that there are
     Even if we reviewed this factual finding de novo, as urged by
Guerrero , we wo uld rea ch the sa me conclusion.
                                                                     “some cases where it was clear that the prosecution didn’t
No. 03-5886                  Guerrero v. United States      15    16    Guerrero v. United States                     No. 03-5886

want to make a deal. I don’t remember if this was one of          testified that they did not remember extending a plea offer to
them.” J.A. at 115. He does not remember discussing a plea        Guerrero, and to the testimony of John O’Donnell, who
agreement with either Mr. or Mrs. Guerrero. He did testify,       testified that he had no recollection of plea negotiations in this
however, that it was his practice to convey all plea offers to    case. The court found that this testimony was consistent with
his clients because “[i]t’s his choice, not mine.” J.A. at 104.   the government’s theory. It noted:
Therefore, if the government had made an offer, O’Donnell
would have conveyed it to Guerrero, according to his                First, the evidence is that Guerrero was at the top of the
testimony, even if he did not believe it was a good one.            distribution ring that the government was prosecuting
                                                                    and had pleas from one or more participants in this
  The district court noted that the only evidence of a plea         distribution ring. Second, Guerrero insisted upon his
offer came from Mrs. Guerrero. The court chose to discredit         innocence, and such an offer would be inconsistent with
her testimony for several reasons. Mrs. Guerrero testified that     any discussion of a plea by his counsel with the
she did not know the specific terms of the alleged plea offer;      Government. Third, there had been a mistrial at which
O’Donnell did not tell her, and she did not ask. She testified      Guerrero testified and in the Government’s view that
that even though she was upset when she learned that                testimony was untruthful. A plea offer from the
O’Donnell had failed to tell her husband of the alleged plea        Government based upon untruthful testimony by
offer, she did not tell her husband about this conversation         Guerrero seems unlikely under these circumstances.
until ten years later. Furthermore, when questioned about the
affidavit, she stated that she remembered signing it and          J.A. at 30.
sending it back to her husband, but she did not remember
having it notarized.                                                Although the issue was not raised by either of the parties,
                                                                  we find that the district court erred in considering Guerrero’s
  Guerrero contends that the district court should not have       insistence upon his innocence as a factor in determining
discredited his wife’s testimony just because she waited ten      whether a plea offer was extended to him. We touched on
years to tell him about the plea offer. As a lay person, she      this issue in Griffin v. United States, 330 F.3d 733 (6th Cir.
would not have understood the legal significance of               2003). In Griffin, it was undisputed that defendant’s counsel
O’Donnell’s alleged failure to communicate the plea offer.        had failed to convey a plea offer to him; the first prong of
Furthermore, until her husband was transferred to Miami, she      Strickland was therefore satisfied. The only question was
did not have the opportunity to communicate with him on a         whether Griffin’s continued insistence upon his innocence
regular basis. She did, however, visit him once and               foreclosed a finding that, if the offer had been conveyed to
exchanged letters with him. There was certainly sufficient        him, he would have accepted it. See 330 F.3d at 738. We
communication between Mrs. Guerrero and her husband               held that his repeated declarations of innocence were not
during a ten-year period that she could have told Guerrero        dispositive on this issue and noted:
about a plea offer if, in fact, one had been made even if, as
claimed, she did not know the legal significance of                 Defendants must claim innocence right up to the point of
O’Donnell’s failure to convey it to Guerrero.                       accepting a guilty plea, or they would lose their ability to
                                                                    make any deal with the government. It does not make
  The district court chose to give more weight to the               sense to say that a defendant must admit guilt prior to
testimony of Harold McDonough and Allen Brown, who                  accepting a deal on a guilty plea. It therefore does not
No. 03-5886                   Guerrero v. United States      17

  make sense to say that a defendant's protestations of
  innocence belie his later claim that he would have
  accepted a guilty plea. Furthermore, a defendant must be
  entitled to maintain his innocence throughout trial under
  the Fifth Amendment.
Id. While Griffin dealt with the prejudice prong of Strickland,
the same reasoning applies with equal force here. To
paraphrase Griffin, Guerrero was entitled to maintain his
innocence at all times. If he did not maintain his innocence,
he would have lost any ability to make a deal with the
government.
  Even though the district court erred in considering
Guerrero’s repeated claims of innocence as a factor in
determining whether the government extended a plea offer to
him, this was harmless error. As discussed above, there was
more than enough additional evidence to support the district
court’s finding that no plea offer was extended in this case.
After reviewing the entire record, we are not left with a
definite and firm conviction that the district court made a
mistake in finding that the government did not extend a plea
offer to Guerrero. It follows that O’Donnell cannot be
charged with failing to communicate a non-existent offer to
his client. Because Guerrero has failed to show that
O’Donnell’s performance was deficient, he has failed to
satisfy the first prong of Strickland.
                              IV.
  We conclude that the district court’s factual finding that the
government did not extend a plea offer to Guerrero is not
clearly erroneous. We therefore AFFIRM the district court’s
order denying Guerrero’s motion to vacate his sentence based
on ineffective assistance of counsel.
