                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 05a0877n.06
                          Filed: October 28, 2005

                                        NO. 04-3346

                        UNITED STATES COURT OF APPEALS
                             FOR THE SIXTH CIRCUIT


MARILYN COCHRAN,                              )
                                              )
       Petitioner-Appellant,                  )
                                              )
v.                                            )   ON APPEAL FROM THE UNITED
                                              )   STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA,                     )   NORTHERN DISTRICT OF OHIO
                                              )
       Respondent-Appellee.                   )




       Before: DAUGHTREY, MOORE, and McKEAGUE, Circuit Judges.


       PER CURIAM. The petitioner, Marilyn Cochran, pleaded guilty to a charge of

possession with intent to distribute crack cocaine and received the statutory mandatory

minimum sentence of 120 months in prison. She did not seek direct review of her

conviction or sentence, but she later filed a petition pursuant to 28 U.S.C. § 2255 to

“vacate, set aside, or correct” her sentence. In that filing, she alleged, among other claims,

that her original attorney provided her with ineffective assistance of counsel by failing to

give her adequate advice regarding the applicability of the safety valve provisions of 18

U.S.C. § 3553(f). The district court denied relief without holding an evidentiary hearing, and

Cochran now contends that the district court erred in failing to provide her with a hearing.
No. 04-3346
Cochran v. United States

Because we conclude that the issue raised in Cochran’s petition could be, and was,

correctly resolved on the existing record, we find no error and affirm.




                      FACTUAL AND PROCEDURAL BACKGROUND


       The petitioner and the government do not dispute the facts relevant to this appeal.

Both sides agree that Cochran allowed other individuals to use her home for the sale of

crack cocaine for several years in exchange for payment of rent and utility bills. Eventually,

the petitioner began selling crack herself from the residence. During 2001 and early 2002,

in fact, law enforcement officials made several controlled purchases of crack from the

petitioner at her home. When the authorities executed a search warrant for the premises,

they recovered cash, portable scales, 430.9 grams of marijuana, and 68.29 grams of

cocaine base. They then arrested Cochran, who was charged with multiple offenses in a

six-count indictment.


       The petitioner readily admitted her complicity in the crimes and entered a plea of

guilty to a count of possession with intent to distribute cocaine base. In exchange, the

government agreed to dismiss the remaining counts of the indictment. Cochran explicitly

reserved, however, “the right to appeal an adverse decision as to the applicability of the

‘safety valve’ provisions . . . .”




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       At the time of sentencing, the district court noted that the statutorily-mandated

minimum sentence for the offense for which Cochran was convicted was 120 months in

prison. Nevertheless, by application of the “safety valve” provisions of the sentencing

guidelines and the applicable statute, the petitioner’s sentence could have been reduced

to only 70 months. In order to take advantage of that reduction, however, the court was

required to find that Cochran “truthfully provided to the Government all information and

evidence the defendant has concerning the offense or offenses that were part of the same

course of conduct or of a common scheme or plan.” 18 U.S.C. § 3553(f)(5).


       For reasons best known to the petitioner, Cochran steadfastly declined to proffer the

information deemed essential by the government to justify application of the safety valve

provisions. The petitioner even executed a signed statement indicating her understanding

of the option she was rejecting: “I understand that . . . I may qualify for the safety valve.

I still do not want to cooperate with, by speaking to, the police or the prosecutor. I

understand that by this decision, I will not be eligible for the safety valve. That is my final

decision.” Giving Cochran yet an additional opportunity to avail herself of the statutory

leniency in sentencing, the district judge offered the petitioner a short recess before

imposition of sentence to consult with her attorney regarding the benefits of testifying about

information she had about the drug operations with which she was involved. Cochran

tersely replied, however, “Your Honor, I have nothing to say anymore.” Given no other

choice, the district court then ruled:



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       Well, I appreciate that this has been a difficult case. The Congress has
       adopted the safety valve provisions and had them incorporated into the
       sentencing guidelines as some form of relief, if you will, from the mandatory
       minimum sentences that are provided, especially for drug offenses, and
       especially for cocaine offenses. And the court applauded that legislation
       when it came into being, and it provided another opportunity for the court to
       somehow soften the very, very harsh sentences that the Congress has
       pr[e]scribed for people dealing with crack cocaine. And there is no dispute
       that the defendant qualifies under the first four provisions of 5C1.2(a)(1), (2),
       (3) and (4). The flashpoint has always been whether or not the defendant
       has truthfully provided to the government all information and evidence the
       defendant has concerning the offense or offenses, et cetera.
              Now there isn’t any exception in there for not disclosing information
       about friends or relatives, children, or parents; the Congress has not seen fit
       to do that. And the defendant, in effect, has to earn his or her way to that
       particular safety valve credit.
              I’ve listened carefully to the testimony of Agent Dustin, and I’ve
       listened and read with interest the statement of the defendant. And the court
       finds by clear and convincing evidence that the defendant has not truly
       provided the government all information and evidence she had concerning
       the offense or offenses. I find the testimony of Agent Dustin to be
       trustworthy.
               I recognize that people who are in difficulty frequently will attempt to
       make things better for themselves by cooperating with the government. This
       courtroom is strewn with people who have been convicted on the testimony
       of cooperating co-defendants. There is nothing unusual about that. And
       anyone who undertakes to engage in criminal conduct has to appreciate the
       fact your friends and neighbors may actually turn on you if you elect not to
       turn on them. That’s all right but you are not entitled to the privileges of the
       safety valve provisions if you elect not to fully cooperate. And I find that the
       defendant has not truly provided the government with all information and
       evidence concerning this offense. In fact, it seems to the court there are
       significant amounts that she knew that she did not disclose, as I see it.
              She did not come up with the last names of many people. She did not
       describe Webb. She did not describe her brother engaging in any criminal
       conduct.
             In any event, the court will deny the defendant’s request for credit for
       complying with the safety valve provisions set forth in Section 5C1.2. And



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       what the court is saying now will constitute its opinion for purposes of appeal
       that presumably the defendant will wish to file.


       Cochran chose not to appeal her conviction and sentence directly to this court.

Instead, she waited approximately one year and filed a motion “to vacate, set aside or

correct [her] sentence” under 28 U.S.C. § 2255. In that motion, Cochran alleged that her

attorney at the plea and sentencing stages provided her with ineffective assistance of

counsel by failing to request a competency hearing, by failing to inform her of the decision

not to appeal her sentence, and by providing incorrect advice concerning the application

of the safety valve provision of the sentencing guidelines. The district court found no merit

to any of the claims and dismissed the petition without an evidentiary hearing. After also

denying a motion for reconsideration, the district judge granted Cochran a certificate of

appealability “on the sole question of whether the petitioner was, on the record before the

Court, entitled to an evidentiary hearing on the claim that she was denied the effective

assistance of counsel with respect to counsel’s advice regarding her compliance with the

safety valve requirements.”


                                       DISCUSSION


       Pursuant to the provisions of 28 U.S.C. § 2255, “[u]nless the motion and the files

and records of the case conclusively show that the prisoner is entitled to no relief,” the

district court shall “grant a prompt hearing” on the issues raised in the petition and “make

findings of fact and conclusions of law with respect thereto.” Yet, while petitioner’s burden


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for establishing entitlement to an evidentiary hearing is “relatively light,” the burden is not

met simply by proclaiming one’s innocence. Turner v. United States, 183 F.3d 474, 477

(6th Cir. 1999). Ordinarily, a material factual dispute must be shown to warrant an

evidentiary hearing. Id. The district court’s decision whether to hold an evidentiary hearing

on a § 2255 motion is reviewed under the abuse of discretion standard. See Smith v.

United States, 348 F.3d 545, 550 (6th Cir. 2003). In this case, the sole issue before the

court involves a claim of ineffective assistance of counsel regarding the advice given to

Cochran concerning the application of the safety valve provision of the relevant statute and

guidelines section.


       In addressing this issue, we are guided by the now-familiar construct of Strickland

v. Washington, 466 U.S. 668 (1984). As required by that analytical framework:


       First, the defendant must show that counsel’s performance was deficient.
       This requires showing that counsel made errors so serious that counsel was
       not functioning as the “counsel” guaranteed the defendant by the Sixth
       Amendment. Second, the defendant must show that the deficient
       performance prejudiced the defense. This requires showing that counsel’s
       errors were so serious as to deprive the defendant of a fair trial, a trial whose
       result is reliable.


Id. at 687.


       In Groseclose v. Bell, 130 F.3d 1161, 1167 (6th Cir. 1997), discussing the first prong

of the Strickland analysis, we recognized:




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       The [Supreme] Court cautioned that in undertaking an ineffective-assistance
       review, “[j]udicial scrutiny of counsel’s performance must be highly
       deferential,” and must avoid the “second-guess[ing of] counsel’s
       assistance . . ., [as] it is all too easy for a court, examining counsel’s defense
       after it has proved unsuccessful, to conclude that a particular act or omission
       of counsel was unreasonable.” Strickland, 466 U.S. at 689 . . . . In order to
       avoid “the distorting effects of hindsight,” a reviewing “court must indulge a
       strong presumption that counsel’s conduct falls within the wide range of
       reasonable professional assistance; that is, the defendant must overcome
       the presumption that . . . the challenged action ‘might be considered sound
       trial strategy.’” Id. (citation omitted).


Furthermore, in evaluating the prejudice suffered by a petitioner as a result of alleged

ineffective assistance of counsel, “[i]t is not enough for the defendant to show that the

errors had some conceivable effect on the outcome of the proceeding.” Strickland, 466

U.S. at 693. Indeed, “[v]irtually every act or omission of counsel would meet that test, and

not every error that conceivably could have influenced the outcome undermines the

reliability of the result of the proceeding.” Id. (citation omitted). Rather, the petitioner “must

show that there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.” Id. at 694.


       Finally, in conducting this inquiry, we need not apply Strickland’s principles in a

mechanical fashion. As the Supreme Court explained:


       [A] court need not determine whether counsel’s performance was deficient
       before examining the prejudice suffered by the defendant as a result of the
       alleged deficiencies. The object of an ineffectiveness claim is not to grade
       counsel’s performance. If it is easier to dispose of an ineffectiveness claim


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       on the ground of lack of sufficient prejudice, which we expect will often be so,
       that course should be followed.


Id. at 697.


       Obviously, we may begin our review by determining whether counsel’s performance

was deficient, or we may first examine any possible prejudice suffered by Cochran. In

either event, the result in this case is identical. Under the safety valve provisions of 28

U.S.C. § 3553(f) and § 5C1.2(a) of the sentencing guidelines, a sentencing court may

ignore federal statutory minimum sentences if:


       (1) the defendant does not have more than 1 criminal history point, as
       determined under the sentencing guidelines;
       (2) the defendant did not use violence or credible threats of violence or
       possess a firearm or other dangerous weapon (or induce another participant
       to do so) in connection with the offense;
       (3) the offense did not result in death or serious bodily injury to any person;
       (4) the defendant was not an organizer, leader, manager, or supervisor of
       others in the offense, as determined under the sentencing guidelines and
       was not engaged in a continuing criminal enterprise . . .; and
       (5) not later than the time of the sentencing hearing, the defendant has
       truthfully provided to the Government all information and evidence the
       defendant has concerning the offense or offenses that were part of the same
       course of conduct or of a common scheme or plan, but the fact that the
       defendant has no relevant or useful other information to provide or that the
       Government is already aware of the information shall not preclude a
       determination by the court that the defendant has complied with this
       requirement.


       Here, the government does not argue that Cochran did not meet the first four of the

safety valve criteria. Rather, the record clearly establishes that Cochran deliberately did

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not provide all the information she possessed regarding the criminal activities in which she

was involved. The petitioner has not adduced, and indeed cannot provide, any evidence

of her willingness to assist the prosecution in further investigations of the individuals

involved in the drug distribution network. In response to questioning from the district judge,

Cochran consistently refused to provide additional information. The petitioner’s counsel

at the time stated that she had explained the safety valve provision to Cochran repeatedly,

but that Cochran still did not want to speak to the police or the prosecutor, even if such lack

of candor eliminated her from eligibility for application of the safety valve.


       The record on appeal contains no evidence that Cochran’s attorney breached her

ethical duty in representing the petitioner. Similarly, given the petitioner’s reluctance to

assist the police in the prosecution of her friends and relatives, there is no indication that

Cochran would have received the benefits of the safety valve provision no matter what

actions her attorney had undertaken.


       The only supplemental “evidence” cited by the petitioner was presented in support

of her motion for reconsideration almost four weeks after the district court had denied her

§ 2255 motion. It consists of an anonymous handwritten letter purportedly authored by an

inmate acquaintance after, and in response to, the district court’s denial of § 2255 relief.

It calls into question the petitioner’s reading ability and her ability to comprehend the

consequences of her decision not to cooperate with the government. The petitioner now

argues that this letter creates doubt about her ability to understand her attorney’s advice


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prior to sentencing and substantiates the need for a psychological examination and

evidentiary hearing.


       In our opinion, the letter is entitled to little, if any, weight. Even accepting it at face

value, the unsigned letter of a friend expressing an opinion of concern and conjecture about

the petitioner’s state of mind over a year earlier, hardly represents the sort of “newly

discovered evidence” that would justify reconsideration. The petitioner, who is represented

by counsel, has made no apparent effort to authenticate the letter or corroborate its

contents. Neither did she respond in any fashion to the district court’s order to advise the

court in writing whether, in light of the government’s facially persuasive opposition to the

§ 2255 motion, the court really needed to conduct an evidentiary hearing and, if so, on what

basis. That is, despite the explicit requirement to substantiate her claim by at least

explaining what purpose would be served by an evidentiary hearing, the petitioner made

no response until after the court had denied her motion. This failing has not been

adequately explained or excused. Under these circumstances, we find no abuse of

discretion in the district court’s refusal to afford the petitioner an evidentiary hearing, initially

or on reconsideration.


                                         CONCLUSION


       The petitioner has failed to produce any facts that would justify expenditure of

judicial resources to conduct an evidentiary hearing on her ineffective-assistance-of-



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counsel claim. We therefore conclude that the district court correctly denied Cochran’s

§ 2255 petition without such a hearing and AFFIRM the judgment of the district court.




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