                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0624n.06

                                             No. 07-5644                                     FILED
                                                                                         Sep 23, 2010
                           UNITED STATES COURT OF APPEALS                          LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT




PAUL ALLEN WOODS,                                          )
                                                           )         ON APPEAL FROM THE
       Petitioner-Appellant,                               )         UNITED STATES DISTRICT
                                                           )         COURT FOR THE MIDDLE
v.                                                         )         DISTRICT OF TENNESSEE
                                                           )
UNITED STATES OF AMERICA,                                  )                  OPINION
                                                           )
       Respondent-Appellee.                                )



BEFORE: NORRIS, MOORE, and McKEAGUE, Circuit Judges.


       ALAN E. NORRIS, Circuit Judge. Petitioner Paul Allen Woods appeals from the denial

of his motion to vacate his sentence filed pursuant to 28 U.S.C. § 2255. In November 2000,

petitioner entered into a written plea agreement with the government. He conceded guilt on two

counts of a seventeen-count superseding indictment and subsequently received a sentence of life

imprisonment. His direct appeal was dismissed by this court because the plea agreement included

a provision waiving his right to appeal. In this proceeding, petitioner raises three issues: ineffective

assistance of trial counsel based upon a conflict of interest; prosecutorial misconduct; and the

constitutionality of his sentence.
No. 07-5644
Woods v. United States



                                                   I.

       In a memorandum opinion denying petitioner’s ineffective assistance of counsel claim, the

district court1 gave the following summary of the underlying criminal activity that resulted in this

prosecution and subsequent guilty plea:

                A lengthy federal investigation determined that between 1993 and 1999, the
       sophisticated Paul Woods drug organization was responsible for distributing
       hundreds of kilograms of cocaine in the Middle District of Tennessee. Motor
       vehicles equipped with hidden compartments exchanged currency and cocaine
       between Nashville, Texas, and Florida. The investigation revealed that Petitioner
       used funds acquired by his drug organization to finance the ownership of a nightclub
       and various businesses associated with the promotion and production of rap music.
       On June 25, 1997, Petitioner became a fugitive; he eluded capture after he displayed
       a pistol to officers, fled in a vehicle, and then fled on foot. The details of Petitioner’s
       criminal misdeeds are numerous, including hiding money in a safe, getting his
       girlfriend to hide money for him, ordering others to transfer drugs and money, and
       hiding from the police in both Nashville and Atlanta. After discovering a warrant
       had been issued for his arrest, Petitioner even attempted to have plastic surgery to
       change his appearance in order to continue to elude capture.

                Petitioner has appeared before this Court on numerous occasions and this
       Court has found that Petitioner pervasively obstructs justice. Petitioner lied under
       oath to the grand jury and suborned perjury when he attempted to get two witnesses
       to lie at his sentencing hearing.

                On November 27, 2000, Petitioner attended a plea hearing at which he
       attempted to plead guilty to the entire indictment charged against him. However, he
       continually denied an essential element of one of the charges. This Court rejected his
       pleas and advised him that pleading guilty to the entire indictment would mandate
       a life sentence without possibility of parole. On November 28, 2000, Petitioner again


  1
   The Honorable Thomas A. Wiseman, Jr., presided over the original prosecution and the early
stages of the § 2255 proceedings. However, after Judge Wiseman denied the ineffective
assistance of counsel claim, petitioner filed a motion requesting that the judge recuse himself.
That motion was granted and the case was transferred to the Honorable William J. Haynes, Jr.

                                                  -2-
No. 07-5644
Woods v. United States

        appeared for a plea hearing, again attempted to plead guilty to the entire indictment,
        but again denied a leadership role under the continuing criminal enterprise charge.
        Therefore, this Court again rejected the plea. Prior to both appearances, Petitioner
        had rejected the plea. On November 29, 2000, Petitioner appeared a third time and
        pled guilty to conspiracy to counts two and three of the indictment. Petitioner offered
        a plea agreement he had drafted and signed. After three modifications were made to
        the agreement and initialed by Petitioner, the Court accepted his guilty plea pursuant
        to that agreement.

Memorandum, Sept. 5, 2003 at 2-3 (footnote omitted).

        The focus of the two principal claims advanced by petitioner concern the events that led to

his decision to plead guilty. Judge Wiseman did not conduct an evidentiary hearing before denying

petitioner’s ineffective assistance of counsel claim. However, on June 12, 2006, Judge Haynes

conducted a one-day hearing on the prosecutorial misconduct allegations which by necessity touched

on the representation petitioner received during plea negotiations. The district court ultimately

denied the claim in a memorandum and order filed April 19, 2007. Because this court reviews the

factual findings of the district court in a § 2255 proceeding for clear error, Hamblen v. United States,

591 F.3d 471, 473 (6th Cir. 2009), it makes sense to rely upon findings of fact set forth in its April

19, 2007 memorandum:

                [Robert] Marlow, Woods’s defense counsel, testified that Woods initially
        wanted to go to trial. In October 2000, Woods expressed his interest in pursuing a
        plea agreement. As a condition to any plea agreement, Woods had to enter a proffer
        agreement. Under the proffer agreement, Woods would have to agree to be debriefed
        or interviewed by government officials to enable them to determine whether to accept
        his offer to plead guilty and also whether to agree to request a reduced sentence.
        Marlow testified that Woods agreed to the proffer or debriefing process. “I had been
        informed that Woods wished to try to reach an agreement. I contacted Mr. [Sunny]
        Koshy [the assigned Assistant United States Attorney] myself. Mr. Koshy and Mr.
        Goodman [a DEA agent] and possibly one other. We went over and had an initial
        meetings [sic] with Mr. Woods at Metro Center. I think basically to make sure that


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No. 07-5644
Woods v. United States

       [Woods] was going to cooperate and he was willing to tell what he knew about drug
       trafficking.”

               Wood’s first proffer session with federal officials was at the Metropolitan
       Nashville Criminal Justice Center where Woods was detained. James (Benny)
       Goodman was the lead agent for the Drug Enforcement Administration (“DEA”). At
       that time, Goodman was a police officer with the Metropolitan Nashville-Davidson
       County police department and an agent of the DEA Drug Task Force created by the
       DEA’s Nashville Office. At this initial meeting, Goodman observed Koshy review
       the proffer letter agreement with Woods in great detail. Thereafter, Woods, Marlow,
       Koshy and Goodman signed the proffer letter agreement.

               After that initial proffer session, there were nine additional debriefings at
       DEA’s Nashville office in the Courthouse building. As part of his agreement to
       cooperate with the government, Woods was interviewed at the DEA’s office . . . at
       various times, by Sunny Koshy, the lead Assistant United States Attorney, Goodman,
       the lead DEA agent and William DeSantis, the lead Internal Revenue Service (“IRS”)
       agent. DeSantis did not participate in all of the Woods’s debriefings. As to the
       substance of Woods’s cooperation in the debriefing sessions, Goodman explained
       that by the time of Woods’s debriefing, many of Woods’s co-defendants had agreed
       to cooperate with the government. Goodman agreed with the characterization of
       Woods’s cooperation as “fairly inconsequential.”

               After several hours at one of the proffer sessions, Woods requested lunch and
       asked Goodman whether Tracey Buford, his girlfriend who operates a restaurant,
       could bring his lunch to the DEA office. Goodman agreed to allow Buford to deliver
       lunch to the DEA office. Woods and Marlow ate their lunch in a small DEA
       interview office. Buford was also in the same office. Goodman did not remain in
       that office the entire time and would repeatedly exit and reenter. According to
       Goodman, Buford brought Woods lunch to four or five of these debriefing sessions.
       On each of those occasions, Goodman conceded that after lunch and before Buford’s
       departure, Woods requested to have a “couple of minutes” of private time with
       Buford, his girlfriend, and each time Goodman agreed. Goodman estimates that
       Buford and Woods were alone for two or three minutes and at most four minutes.
       During these visits, Woods was dressed in a jumpsuit and his legs were shackled.
       Goodman would reenter the room anytime unannounced.

                      ....

               According to Woods and Buford, during this private time, they had sexual
       relations in the DEA conference room. Buford described these encounters as lasting

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No. 07-5644
Woods v. United States

       five (5) to ten (10) minutes. Woods and his girlfriend insist that the scenario was
       repeated during several of Woods’s subsequent DEA interviews. Woods and his
       girlfriend also testified that Goodman was aware of this sexual activity in the DEA
       office and that Goodman also engaged in sexual banter with them. Woods and
       Buford also insist that Koshy, Goodman and DeSantis approved of these sexual
       encounters. Yet, Buford conceded that her testimony about Koshy’s, Goodman’s and
       DeSantis’s approval of these visits is based upon what Woods told her.

               Marlow, Woods’s counsel, remained in the room during these private visits
       of Woods and Buford, but would turn his back on them. Marlow denied hearing any
       conduct by Woods and his girlfriend that was suggestive of sexual intercourse in that
       small DEA office. Goodman could not recall whether Marlow always remained in
       the room, but does recall one debriefing when Marlow stepped outside of the room
       to ask about the agents’ view of the value of the Woods’s debriefing and the level of
       his cooperation. As to Woods and Buford being alone, DeSantis also recalled only
       one time when agents and Marlow stepped outside to talk for a couple of minutes,
       probably at Marlow’s request. DeSantis never received any requests from Woods for
       time alone with Buford nor heard any such requests by Woods to Koshy or Goodman.
       Except for that one occasion, whenever DeSantis was present, Marlow was in the
       room with Woods and Buford.

                The issue of Woods’s private visits and sexual contact with his girlfriend
       arose during Woods’s criminal proceedings. In a letter filed by the Clerk’s office on
       April 25, 2001, Woods wrote to Judge Wiseman about, among other things, the
       luncheon office visits with his girlfriend and free local and long distance telephone
       calls and complained of Koshy’s and Goodman’s involvement in these matters.
       Koshy’s response was that the Court should investigate the matter and that with this
       letter, Woods was trying to secure a downward departure motion. Noteworthy is that
       the primary focus of this letter is Woods’s denial of a leadership role in the
       conspiracies. Woods’s letter ascribes to the government officials the following
       purpose for the visits and telephone calls: “Your Honor I the defendant Paul Woods
       feel that just because DEA officer Goodman provided me with sexual activities
       during and after debriefing sessions and unlimited free local and long distance calls
       to Atlanta, Ga. and also allowing me to have meals brought to me during our
       sessions, that I would be willing to lie for the government.” . . . The defendant, Paul
       Woods, feels that the government is trying to breach the plea agreement because the
       defendant is not willing to lie for the government.” Woods testified at his May 9,
       2001 sentencing hearing, but did not mention either the Buford visits nor the
       telephone calls cited in his April 25th letter.



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No. 07-5644
Woods v. United States

               To be sure, Woods presented a transcript of a telephone conference that
       Woods arranged with Marlow. The transcript includes a statement attributed to
       Marlow “that was many occasions that we up there and (inaudible) . . . would leave
       you two alone.” In addition, John Peryam, a second year law student who assisted
       Woods in this action, interviewed Marlow by telephone at Woods’s request.
       Peryam’s interview was based upon a draft affidavit prepared by Woods for Marlow
       describing Buford’s sexual visits with Woods at the DEA office. According to
       Peryam, Marlow stated that Woods and his girlfriend were left alone to have sexual
       contact. Marlow never observed sexual intercourse, but did see them groping each
       other. Peryam testified that he recalled Marlow saying that Sunny Koshy had
       knowledge of these visits. Yet, Peryam’s contemporary notes of that conversation
       actually reflect that Marlow’s statement was that he “assumed” Koshy and Goodman
       knew about these contact visits. In addition, Peryam’s notes reflect that Marlow used
       the phrase “private contact,” not sexual contact or relations. In a subsequent
       conversation with Peryam, Marlow felt uncomfortable about any such statement
       about Koshy. Peryam prepared a draft affidavit for Marlow, but Marlow never
       signed that draft.

               Sonja Howard, another of Woods’s girlfriends who lives in Atlanta, testified
       that she spoke with Woods in a telephone conversation arranged by Goodman.
       According to Howard, Goodman told her he wanted her to identify two pictures.
       Woods then talked to Howard and Woods told her that if she came to Nashville, they
       would get ten (10) minutes alone. Howard came to Nashville and spoke to
       Goodman, but she did not see Woods. According to Howard, Goodman told her that
       Woods had “p’d him off” and there would not be any personal visit. Goodman,
       however, denied any conversation with Howard about her having a private visit with
       Woods. Goodman conceded that Woods may have made a long distance telephone
       call to Howard in Atlanta from the DEA’s Nashville office, but Woods never
       requested that Howard be brought to Nashville.

               Koshy denied any knowledge or approval of any sexual contact visits between
       Woods and Buford. Koshy and Goodman explained that in some circumstances,
       DEA allows a defendant to have family visits while the defendant is in DEA custody,
       but neither the DEA nor Goodman authorized sexual contact between Woods and his
       girlfriend. Koshy and Goodman did discuss Buford’s providing food to Woods as
       generating a Giglio disclosure for any testimony by Woods. Goodman denies any
       sexual banter with Woods or Buford.

              As Woods’s motivation to plead guilty, Marlow testified: “I think Woods
       wanted to enter a plea, I think he wanted to try to and cut a deal and minimize
       exposure to time that he was going to face incarceration.” As noted earlier, Woods’s

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No. 07-5644
Woods v. United States

        proffer agreement establishes that Woods’s decision to plead guilty was made prior
        to the first of these contact visits. Woods’s letter to the Court and his handwritten
        plea agreement establish Woods’s independent decision to plead guilty.

                As to these factual disputes, the Court first credits the testimony of Sunny
        Koshy, that he was unaware of and did not authorize or condone any of Woods’s
        private visits or sexual contact with Buford. Goodman actually agreed to Woods’s
        brief visits with Buford. Although Woods and his girlfriend had some sexual contact
        on these visits, the Court credits testimony of Marlow who was in the room at the
        time of most of these visits, that Woods and his girlfriend did not have sexual
        intercourse. According to Marlow, Woods and his girlfriend had only a few minutes
        in the small DEA conference room and sexual intercourse did not occur. There may
        have been some banter between Woods, his girlfriend and Goodman, but the Court
        finds that the banter of the sexual nature described by Woods and his girlfriend, did
        not occur.

Memorandum, April 19, 2007, at 5-10 (citations omitted) (emphasis in original).

        Against this backdrop looms the question of defense counsel Marlow’s representation of his

client. Petitioner retained him for $28,000 and the deed to six acres of land. On October 18, 2000,

Marlow filed a motion to withdraw with a supporting affidavit. According to the affidavit, he had

consulted with attorneys at the Disciplinary Council of the Tennessee Board of Professional

Responsibility about a potential conflict of interest and had been advised that he had an actual

conflict, not simply a potential conflict.

        On the day that counsel filed his motion, he appeared at the first proffer meeting with

petitioner and AUSA Koshy, Goodman, and one other individual. In an affidavit sworn in 2003,

petitioner states that Marlow arranged this meeting without his permission. In the same document,

petitioner alleges that Marlow asked him if he knew Vaughn Askew, whom Marlow was

representing in another drug prosecution. This dual representation created the potential conflict of

interest.

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Woods v. United States

       On October 20, the district court held a hearing on the motion to withdraw. Marlow told the

court that he had discovered an actual conflict of interest at about the same time that petitioner

decided to explore cooperating. According to Marlow, he had been advised by disciplinary counsel

that “I had a conflict . . . if either one of these clients went to trial.” However, Marlow went on to

explain that he could remain as counsel under certain conditions:

       [Disciplinary counsel] also opined . . . that if they both were cooperating and the
       cooperation was not inconsistent as to each other’s culpability, then there would be
       no conflict . . . .

               I have made full disclosure to both clients, the conflict I have explained to
       Mr. Woods, that if he was going to persist in his plea of not guilty and go to trial, it
       is mandatory I would have to withdraw, I was disqualified. I also explained to him
       if he decided to cooperate . . . , it is my opinion that I probably could continue to
       represent him but he would have to waive that conflict . . . .

The court then asked petitioner, who was present, if he understood the situation. He said that he did

and that he wanted to have Marlow represent him and to continue to cooperate with AUSA Koshy.

Petitioner also told the court that he did not object to Marlow’s continued representation of Vaughn

Askew. The court then gave petitioner the following advice:

       [Y]ou don’t have to waive your right to have another lawyer. You could insist upon
       it and if you couldn’t hire somebody else, the Court would appoint somebody else for
       you. But you have a right to have somebody who does not have any sort of an
       apparent conflict of interest or potential conflict of interest. . . . On the other hand,
       it’s something you can waive if you are satisfied with what Mr. Marlow is doing and
       what he has done and what he proposes to do for you . . . .

Petitioner elected to “stay” with Marlow.

       Thereafter, petitioner and Marlow participated in the debriefing sessions described earlier.

In his 2003 affidavit, petitioner states, “After the first few meetings with the government, Mr.


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No. 07-5644
Woods v. United States

Marlow informed me the government was impressed with my information and wanted to use me as

a witness in future trials. He indicated I could expect to receive a plea agreement providing for

between 3-7 years in prison.”

       On November 22, 2000, the government sent Marlow a proposed plea agreement that

contemplated a sentence of between 20 years to life in prison. Petitioner refused it “because I felt

the government would provide a better offer.”

       A plea hearing had been set for November 27 and petitioner intended to plead not guilty.

Koshy and Marlow met with him. According to petitioner, when they heard that he intended to reject

the plea, they both became angry and Marlow told him that he was being stupid. At the hearing,

petitioner attempted to plead guilty to the entire indictment as discussed by Judge Wiseman in the

portion of his memorandum opinion quoted earlier. The court continued the hearing because it was

convinced that petitioner did not fully understand what he was doing. According to his affidavit,

petitioner’s “intent was to take responsibility for my illegal actions to the extent I believed I was

guilty of them. However, I was unwilling to take responsibility for actions I was not guilty of,

specifically having a leadership role and the gun possession charge.”

       In any event, the next day the court began the plea colloquy but stopped when petitioner

continued to deny a leadership role. The court explained its position to petitioner in these terms:

                Now, I didn’t write the Indictment; the Grand Jury did. That is what the
       Grand Jury has charged you with. Now, when you come before me, I have two
       choices. You can stand up here and plead guilty to it, or you can go to trial. Now,
       there is a third choice that I don’t have anything to do with. And that is you and your
       lawyer and the U.S. Attorney can work out an agreement. . . .



                                                -9-
No. 07-5644
Woods v. United States

               . . . [A]nd furthermore, your lawyer, if you go to trial, is going to have to
       withdraw from representing you because he has a conflict with another person that
       he has represented, who would likely be a witness against you . . . .

The district court then set trial for May 7, 2001. Marlow renewed his motion to withdraw, which

the court granted with the provision that he return any portion of the retainer which “is fair under

what you have done.”

       The next day, November 29, petitioner was again brought to court. Despite having

withdrawn as his attorney, Marlow was present along with AUSA Koshy and they spoke with

petitioner before court proceedings began. Petitioner had prepared a handwritten plea agreement,

which he gave to Koshy. It provided for a five to forty year sentence. Koshy accepted the agreement

and inserted language that there were no other agreements, which petitioner initialed.

       When proceedings convened, Koshy informed the district court that “apparently Mr. Woods

wants to continue on with Mr. Marlow as his retained counsel.” Turning to the terms of the plea

agreement, the district court observed that the sentencing range was inaccurate and must be 20 years

to life imprisonment. After some discussion, the agreement was amended and initialed by petitioner.

During the hearing, Koshy noticed that paragraph ten of the agreement omitted language making it

clear that whether petitioner should receive a U.S.S.G. § 5K1.1 reduction in sentence was a matter

to be determined by the government. The district court considered the omission “a contrived

ambiguity” and petitioner initialed a change to the agreement that included that language.

       Addressing petitioner, the district court went through the terms of the plea agreement and

determined that the plea was based upon petitioner’s free will. It also conducted a final colloquy



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No. 07-5644
Woods v. United States

with petitioner about Marlow’s conflict of interest and elicited from petitioner that he wished to keep

Marlow as his attorney despite these potential problems. The plea was ultimately accepted.

       On April 2, 2001 petitioner wrote the letter to the district court alluded to earlier in which

he informed the court of the sexual improprieties that occurred during the plea negotiations and also

asserted that the government sought false testimony. According to his affidavit, this letter elicited

a response from Marlow who visited petitioner and told him to “stick to the damn plan.”

       Petitioner’s sentencing hearing occurred on May 9, 2001. He received a sentence of life

imprisonment. No § 5K1.1 motion for substantial assistance was filed by the government.

                                                  II.

       In reviewing the denial of the three claims for relief advanced by petitioner, we apply a de

novo standard of review to the legal conclusions reached by the district court but must uphold its

factual findings unless they are clearly erroneous. Benitez v. United States, 521 F.3d 625, 630 (6th

Cir. 2008). To warrant relief under 28 U.S.C. § 2255, a petitioner must demonstrate the existence

of “an error of constitutional magnitude which had a substantial and injurious effect or influence on

the guilty plea or the jury’s verdict.” Griffin v. United States, 330 F.3d 733, 736 (6th Cir. 2003)

(citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). With those precepts in mind, we turn to

the arguments advanced by petitioner.

1. Ineffective Assistance of Trial Counsel

       This court dealt with a case of an alleged conflict of interest due to multi-defendant

representation some years ago in Thomas v. Foltz, 818 F.2d 476 (6th Cir. 1987), and that case

continues to provide a roadmap to the proper analytical approach in such cases:

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                The starting point for analyzing a claim of ineffective assistance of counsel
       is the two-pronged standard set forth in Strickland v. Washington, 466 U.S. 668, 687,
       104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Under that standard, a criminal
       defendant must show both that his counsel’s performance was deficient and that it
       prejudiced his defense in a manner which deprived him of a fair trial. This standard
       is adjusted, however, when dealing with a situation where a defendant enters a guilty
       plea instead of being found guilty after a trial. In the context of guilty pleas, the first
       element, the “performance” aspect, of the Strickland test remains the same but the
       second element, the “prejudice” requirement, changes. “[I]n order to satisfy the
       ‘prejudice’ requirement, the defendant must show that there is a reasonable
       probability that, but for counsel’s errors, he would not have pleaded guilty and would
       have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 370, 88
       L.Ed.2d 203 (1985).

               The instant case involves a specific type of ineffectiveness claim, that of
       conflict of interest, which is also examined under a slightly different standard from
       that used in a traditional ineffectiveness claim. The Supreme Court set forth the
       standard for determining conflict of interest cases in Cuyler v. Sullivan, 446 U.S. 335,
       100 S.Ct. 1708, 64 L.Ed.2d 333 (1980), and summarized it again in Strickland as
       follows:

               In Cuyler . . . [we] held that prejudice is presumed when counsel is
               burdened by an actual conflict of interest. In those circumstances,
               counsel breaches the duty of loyalty, perhaps the most basic of
               counsel’s duties. Moreover, it is difficult to measure the precise effect
               on the defense of representation corrupted by conflicting interests.
               Given the obligation of counsel to avoid conflicts of interest and the
               ability of trial courts to make early inquiry in certain situations likely
               to give rise to conflicts . . . it is reasonable for the criminal justice
               system to maintain a fairly rigid rule of presumed prejudice for
               conflicts of interest. Even so, the rule is not quite the per se rule of
               prejudice that exists for the Sixth Amendment claims mentioned
               above [actual or constructive denial of the assistance of counsel
               altogether]. Prejudice is presumed only if the defendant demonstrates
               that counsel “actively represented conflicting interests” and that “an
               actual conflict of interest adversely affected his lawyer's
               performance.”

       Strickland, 466 U.S. at 692, 104 S.Ct. at 2067 (emphasis added) (quoting Cuyler, 446
       U.S. at 345-50, 100 S.Ct. at 1716-19). This Circuit has interpreted the Cuyler test as
       directing courts “to determine, on the facts of each case, whether there is an actual

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No. 07-5644
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        conflict of interest and whether that conflict has caused ineffective performance in
        violation of the provisions of the Sixth Amendment. . . .” Smith v. Bordenkircher,
        671 F.2d 986, 987 (6th Cir.), cert. denied, 459 U.S. 848, 103 S.Ct. 107, 74 L.Ed.2d
        96 (1982).

                Just as the Strickland standard has to be adapted to the guilty plea context, so
        must the Cuyler standard be adapted. The primary question in the guilty plea context
        is whether the plea was a “voluntary and intelligent choice” made by the defendant.
        North Carolina v. Alford, 400 U.S. 25, 31, 91 S.Ct. 160, 164, 27 L.Ed.2d 162 (1970).
        Thus, in order to successfully assert a claim of ineffective counsel based on a conflict
        of interest, a defendant who entered a guilty plea must establish: (1) that there was
        an actual conflict of interest, Smith, 671 F.2d at 987; and (2) that the conflict
        adversely affected the voluntary nature of the guilty plea entered by the defendant.

Foltz, 818 F.2d at 480 (citation and footnote omitted). It is worth emphasizing that the Supreme

Court held in Cuyler, that “[i]n order to demonstrate a violation of his Sixth Amendment rights, a

defendant must establish that an actual conflict of interest adversely affected his lawyer’s

performance.” 446 U.S. at 350.

        Petitioner contends that defense counsel Marlow had two conflicts of interest: he represented

potentially adverse parties, albeit in separate prosecutions; and he had a financial stake in obtaining

a guilty plea from his client.

        In United States v. Hall, 200 F.3d 962 (6th Cir. 2000), we reversed the denial of a § 2255

motion to vacate based upon ineffective assistance stemming from a conflict of interest. In that case,

counsel represented two brothers, one of whom was much more culpable than the other. Counsel

took the case to trial rather than encourage the less culpable defendant to enter into a plea agreement,

which would have resulted in significantly less prison-time than he eventually received. In reversing,

we noted that “[f]oregoing plea negotiations is proof of an actual conflict of interest.” Id. at 966

(citing Foltz, supra; Holloway v. Arkansas, 435 U.S. 475, 490 (1978)); see also Ruffin v. Kemp, 767

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F.2d 748, 752 (11th Cir. 1985) (attorney’s negotiation of plea bargain for one client that included

testimony against another client is actual conflict of interest).

        In Wheat v. United States, 486 U.S. 153 (1988), the Supreme Court affirmed the refusal of

the district court to allow a defendant to waive a potential conflict of interest in order to be

represented by the same counsel as his co-defendants. The trial court had concluded that such

representation would likely result in a conflict of interest. In the Supreme Court’s view, “the district

court must be allowed substantial latitude in refusing waivers of conflicts of interest not only in those

rare cases where an actual conflict may be demonstrated before trial, but in the more common cases

where a potential for conflict exists which may or may not burgeon into an actual conflict as the trial

progresses.” Id. at 163. Where, as in the instant case, a trial court has been informed that a conflict

may arise, it “must take adequate steps to ascertain whether the conflicts warrant separate counsel.”

Id. at 160.

        Turning to the facts of his case, in his affidavit supporting his initial motion to withdraw,

Marlow averred that he had an actual conflict of interest due to his representation of another person

(Askew). In the hearing on the motion to withdraw, AUSA Koshy conceded that “Mr. Askew did

provide information that I would have used in any trial of Mr. Woods.” As recounted earlier,

however, the district court informed petitioner that “you have a right to have somebody who does

not have any sort of an apparent conflict of interest or potential conflict of interest,” and went on to

explain, “it’s something you can waive if you are satisfied with what Mr. Marlow is doing and what

he has done and what he proposes to do for you, that is your right.”



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        As did the district court, we conclude that Marlow labored under a potential, rather than

actual, conflict of interest. Because petitioner was made abundantly aware of that potential conflict,

he could, and did, waive his right to be represented by someone else. See United States v. Davis, 490

F.3d 541, 548 (6th Cir. 2007) (“[a] defendant may make a knowing, intelligent, and voluntary

waiver of [his] right to conflict-free counsel, and a defendant has a Sixth Amendment right to

counsel of [his] choice”) (quoting United States v. Straughter, 950 F.2d 1223, 1234 (6th Cir. 1991)).

This conclusion is bolstered by a number of factors. First, counsel himself recognized a conflict and

filed a motion to withdraw. Second, the district court responded by fully informing petitioner of his

options, including that Marlow could not proceed to trial. And, third, petitioner acknowledged those

restrictions but elected to proceed with Marlow. In short, petitioner knowingly elected to enter a plea

of guilty despite the court’s guidance concerning the implications of Marlow’s potential conflict and

his option to retain new counsel. Given the facts before us, petitioner’s waiver of conflict-free

counsel was valid and hence his Sixth Amendment claim was properly rejected by the district court.

2. Prosecutorial Misconduct

        The allegations that accompany petitioner’s prosecutorial misconduct claim are admittedly

troubling. Even if we accept the factual finding of the district court that, while “Woods and his

girlfriend had some sexual contact on these visits, [they] did not have sexual intercourse,” Agent

Goodman exhibited poor judgment by according petitioner personal favors while plea negotiations

were ongoing. However, poor judgment does not necessarily amount to prosecutorial misconduct

sufficient to entitle petitioner to § 2255 relief.



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Woods v. United States

       In assessing whether a plea was knowing and voluntary, courts must consider whether the

plea was induced by improper threats, promises, or other things that have “no proper relationship to

the prosecutor’s business.” See Brady v. United States, 397 U.S. 742, 755 (1970) (citation omitted).

Petitioner argues that Agent Goodman’s acquiescence to intimate contact between petitioner and Ms.

Buford rose to the level of a bribe, rendering his guilty plea less than free and voluntary.

       While the contact between petitioner and Ms. Buford was ill-advised, there is nothing in the

record to indicate that it affected petitioner’s ultimate decision to plead guilty. In reaching this

conclusion, we affirm based upon the reasoning of the district court:

               The Court first concludes that these visits did not impact Wood’s decision to
       plead guilty. The Court credits Woods’ statements in his plea colloquy that no one
       had applied any psychological or other pressure to get him to waive his rights and to
       plead guilty. As Woods’ counsel testified Woods wanted to plead guilty given his
       substantial criminal activities and his extensive exposure at sentencing. Second, the
       proffer sessions that later led to these contact visits, did not begin until Woods had
       decided to plead guilty. Third, in his letter to Judge Wiseman before his sentencing,
       Woods does not suggest that these visits caused him to plead guilty, rather Woods
       asserted that the Government was breaching a plea agreement. Woods rejected the
       government’s plea offers and insisted upon and wrote his own plea agreement. The
       government accept[ed] Woods’ handwritten plea agreement that was the basis for his
       convictions. Thus, the Court finds the lack of a causal connection between Woods’
       decision to plead guilty and these visits with Buford.

              The Court also concludes that these visits were not intended to provide any
       sexual contacts so as to elicit any plea agreement or facilitate any cooperation from
       Woods. Woods had agreed to cooperate before any visit from Buford. At the time
       of Woods’ debriefing and cooperation, most of his co-defendants were already
       cooperating with the government, as reflected by their testimony at Woods’
       sentencing hearing.

Memorandum, April 19, 2007, at 11.




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Woods v. United States

       Petitioner also invokes a legal proposition explicitly rejected by the Seventh Circuit: that

“outrageous” governmental conduct may rise to a level where it so shocks the conscience that it

becomes an independent ground for ordering a new trial. See United States v. Boyd, 55 F.3d 239,

241 (7th Cir. 1995). The Seventh Circuit’s resolution of this claim is not binding on us, however,

and the Supreme Court and this court have previously considered whether conduct by the

government that is so outrageous that it “shocks the conscience” could bar prosecution. See

Hampton v. United States, 425 U.S. 484, 489-90 (1976); United States v. Payne, 962 F.2d 1228,

1231-32 (6th Cir. 1992). Each case involved the allegedly outrageous acts of governmental agents

investigating criminal activity: in Hampton, by controlled drug purchases; in Payne by setting up a

sting operation to undercover money laundering. In Hampton, the Supreme Court acknowledged that

language from a prior opinion, United States v. Russell, 411 U.S. 423 (1973), implied that such a set

of facts might arise: “[W]e may some day be presented with a situation in which the conduct of law

enforcement agents is so outrageous that due process principles would absolutely bar the government

from invoking judicial processes to obtain a conviction.” Hampton, 425 U.S. at 489 (quoting

Russell, 411 U.S. at 431-32). The Court went on to distinguish that language before concluding,

“[t]he limitations of the Due Process Clause of the Fifth Amendment come into play only when the

Government activity in question violates some protected right of the Defendant.” Id. at 490. Payne

echos that language. 962 F.2d at 1231 (citing Hampton). In neither case did the court grant

defendant the requested relief.

       Even if we acknowledge that under some circumstances the government’s conduct in

prosecuting a criminal case may be so outrageous that a defendant’s due process rights are

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Woods v. United States

implicated, the facts before us are not remotely close to making out such a claim. No protected right

of defendant was violated and we therefore hold that this theory does not entitle petitioner to relief.

3. Sentencing

       Petitioner’s final claim is that the district court failed to take the sentencing factors outlined

in 18 U.S.C. § 3553(a) sufficiently into account, including petitioner’s difficult childhood. Instead,

the court relied on the sentencing guidelines when it imposed a mandatory life sentence. Petitioner

argues that he should have been sentenced under United States v. Booker, 543 U.S. 220, 249 (2005),

which changed the sentencing landscape by instructing district courts to use the guidelines as

advisory only. However, the district court imposed petitioner’s sentence before Booker and its

progeny were decided and this court has held that the post-Booker sentencing regime is not to be

applied retroactively.    Humphress v. United States, 398 F.3d 855, 863 (6th Cir. 2005).

Consequently, petitioner’s challenge to the calculation of his sentence must be rejected.

                                                 III.

       The judgment of the district court is affirmed.




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