                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 16-1113
                                     ______________

                            UNITED STATES OF AMERICA

                                             v.

                                   MICHAEL GIAMO,
                                             Appellant
                                    ______________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                           (D.C. No. 2-11-cr-00620-001)
                     District Judge: Hon. Michael M. Baylson
                                 ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    October 4, 2016
                                   ______________

            Before: SHWARTZ, GREENBERG, and ROTH, Circuit Judges.
                          (Filed: November 9, 2016)

                                     ______________

                                        OPINION*
                                     ______________

SHWARTZ, Circuit Judge.




       *
        This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
       Michael Giamo appeals the District Court’s order denying his petition for a writ of

habeas corpus pursuant to 28 U.S.C. § 2255. Giamo claims that, had he received

effective assistance of counsel, he would have engaged in a proffer with the Government,

entered into a guilty plea, and received a lower sentence. We conclude that Giamo has

failed to show that he was prejudiced by his counsel’s representation and will affirm the

District Court’s order.

                                              I

       A jury convicted Giamo on all eight counts of an indictment related to his

participation in an arson-for-hire scheme. Two of the counts1, use of fire to commit a

felony in violation of 18 U.S.C. § 844(h) and malicious damage by fire of a building used

in interstate commerce in violation of 18 U.S.C. § 844(i), carried mandatory consecutive

prison terms of ten and five years, respectively.

       After this Court affirmed Giamo’s 192-month prison sentence, see United States v.

Giamo, 536 F. App’x 238 (3d Cir. 2013) (not precedential), Giamo, with the assistance of

newly appointed counsel, filed a § 2255 petition alleging that his first counsel

(“Counsel”) failed to explain the Government’s pre-indictment plea offer. The District

Court ordered the Government to file a response to the petition limited to whether Giamo

was prejudiced by the alleged ineffective assistance of counsel and ordered an evidentiary

hearing on the pre-indictment plea offer process.


       1
         The remaining six counts charged mail fraud under 18 U.S.C. § 1341, arson
conspiracy under 18 U.S.C. § 844(h), false statement under 18 U.S.C. § 1001, obstruction
of justice under 18 U.S.C. §§ 1512(c)(1), 1512(c)(2), and 1505.
                                             2
      The evidentiary hearing primarily focused on Counsel’s representation of Giamo

from August 15, 2011, one week after Giamo’s arrest, until October 6, 2011, the day of

Giamo’s indictment. During that time, Counsel and an Assistant United States Attorney

(“AUSA”) discussed the following plea offer: if Giamo engaged in a full and complete

proffer with the Government and pled guilty to violating § 844(h), then the Government

would not charge Giamo with violating § 844(i). This deal would have reduced Giamo’s

mandatory minimum sentence from fifteen to ten years’ imprisonment.

      Counsel testified that he met with Giamo several times and discussed the

Government’s plea offer. After discussing the offer with his client, Counsel arranged for

Giamo to engage in a proffer with the Government. On his way to the proffer, Giamo

told a federal agent that he wanted to fire Counsel and that he was not going to speak

with the Government. Giamo then privately met with Counsel, reiterated that he wanted

a new lawyer, and said he would not proffer. Counsel relayed Giamo’s positions to the

AUSA.

      The AUSA asked Counsel if he (the AUSA) could convey the proposed plea offer

directly to Giamo because, in accordance with the Speedy Trial Act, the Government

needed to promptly present the case to the grand jury and there would not be time to

negotiate another pre-indictment plea agreement. Counsel agreed to allow the AUSA to

communicate the offer directly to Giamo. The AUSA told Giamo, among other things,

that: (1) the Government was planning to charge Giamo with offenses that carried

consecutive mandatory minimum prison terms of ten and five years; (2) the Government

was proposing a plea offer that would remove the charge that carried a five-year

                                            3
mandatory minimum prison term; (3) the plea offer was conditioned on Giamo proffering

that day, telling the Government everything about the scheme, including the whereabouts

of the proceeds, and pleading guilty to violating § 844(h); and (4) this was Giamo’s last

opportunity to avoid an indictment for crimes with the combined fifteen-year mandatory

minimum prison sentence. The AUSA testified that Giamo indicated that he understood

the Government’s offer, but still refused to proffer. After the meeting, the grand jury

returned an eight-count indictment, which included charges carrying a mandatory

minimum sentence of fifteen years.

       At the § 2255 hearing, the District Court provided Giamo with an opportunity to

testify as to whether he would have proffered and pled guilty to violating § 844(h).

Giamo never explicitly testified that he would have pled guilty to an arson scheme.

When asked directly if he was prepared to admit under oath that he participated in an

arson scheme, Giamo replied that he “was prepared to plead to anything that would get

me under 20 years.” App. 167. The Court deemed this answer unresponsive and not

credible. Giamo further testified that he would have accepted a plea offer for ten years’

imprisonment, but did not answer whether he would have accepted an offer with a

minimum of ten years’ imprisonment. Giamo also provided an affidavit in which he said

that it was his co-conspirator’s idea to commit arson and that he had only intended to

burglarize the property.

       Based on this evidence, the District Court denied Giamo’s § 2255 petition because

Giamo failed to demonstrate that, absent Counsel’s ineffectiveness, he would have



                                             4
entered into a plea agreement with the Government that would have resulted in a lower

sentence. Giamo appeals.

                                              II2

       The right to effective assistance of counsel applies to all critical stages of criminal

proceedings, including the negotiation of a guilty plea. Missouri v. Frye, 132 S. Ct. 1399,

1405 (2012). Claims of ineffective assistance of counsel are evaluated under Strickland

v. Washington’s two-part test. 466 U.S. 668 (1984). Under Strickland, the petitioner

must show: (1) the errors by his attorney were so serious that his counsel did not perform

the function guaranteed by the Sixth Amendment; and (2) counsel’s deficient

performance prejudiced the defense. Id. at 687. The petitioner bears the burden to prove

both parts of the test. Id. at 693.

       Here, the only issue before the Court is whether the District Court correctly found

that Giamo failed to satisfy his burden of proving that he was prejudiced by Counsel’s

representation.3 To show that prejudice resulted from his Counsel’s assistance in the plea

bargaining context, a petitioner must demonstrate that “‘but for counsel’s deficient

performance there is a reasonable probability he and the trial court would have accepted

the guilty plea’ and the resulting sentence would have been lower.” Shotts v. Wetzel, 724


       2
          The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253(a), (c), exercise plenary review over the
District Court’s legal conclusions, and apply a clearly erroneous standard to the District
Court’s factual findings. United States v. Travillion, 759 F. 3d 281, 289 (3d Cir. 2014).
        3
          The District Court granted a Certificate of Appealability as to whether Petitioner
demonstrated prejudice from Counsel’s representation during the plea bargaining process
and the Government does not dispute that Counsel failed to provide competent assistance.
Appellee’s Br. at 19-20.
                                              5
F.3d 364, 376 (3d Cir. 2013) (quoting Lafler v. Cooper, 132 S.Ct. 1376, 1391 (2012));

see also Frye, 132 S. Ct. at 1409; United States v. Day, 969 F.2d 39, 45 n.8 (3d Cir.

1992).4 Giamo fails to meet this standard.

       Giamo has not demonstrated there was a reasonable probability that, but for

Counsel’s deficient performance, he would have accepted the Government’s plea offer.

As discussed above, the Government’s offer to Giamo was conditioned on him (1)

pleading guilty to violating § 844(h); and (2) making a satisfactory proffer. The record

does not indicate that Giamo would have admitted that he violated § 844(h). On the

contrary, Giamo has steadfastly insisted that he did not participate in an arson scheme.

The District Court asked Giamo whether he was prepared to admit under oath that he

participated in setting fire to the building and Giamo responded only that he was

“prepared to plead to anything to get [ ] under 20 years.” App. 167. The Court deemed

Giamo’s answer unresponsive and not credible. The record supports this finding. In his

affidavit, Giamo said that it was his co-conspirator’s independent idea to commit arson

and that he had only intended to participate in a burglary scheme. Not only does this

show Giamo was unable to provide a factual basis necessary for a plea to committing an

arson, but it also casts doubt on whether he would have provided a complete and truthful

proffer.



       4
         The reasonable probability standard “does not require a showing that counsel’s
actions more likely than not altered the outcome, but the difference between Strickland’s
prejudice standard and a more-probable-than-not standard is slight and matters only in the
rarest case.” Harrington v. Richter, 562 U.S. 86, 111–12 (2011) (internal quotation
marks omitted).
                                             6
       Giamo also fails to demonstrate that there was a reasonable probability that he

would have accepted the Government’s plea offer. The offer contemplated a reduction in

Giamo’s mandatory minimum sentence from fifteen to ten years, but made no promises

that the sentence would not exceed ten years. Giamo testified that he would have

accepted a plea bargain for ten years’ imprisonment, but never stated that he would have

accepted a plea bargain with a minimum of ten years’ imprisonment.

       As a result, the District Court did not err in concluding that Giamo failed to

demonstrate with a reasonable probability that he would have accepted the plea offer and

it correctly concluded that Giamo did not satisfy Strickland’s prejudice prong.

                                             III

       For the foregoing reasons, we will affirm the District Court’s order denying

Giamo’s § 2255 petition.




                                             7
