                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 08a0714n.06
                           Filed: November 20, 2008

                                            No. 07-3263

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


JAMES W. WHITE,                                   )
                                                  )
       Petitioner-Appellant,                      )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA,                         )    SOUTHERN DISTRICT OF OHIO
                                                  )
       Respondent-Appellee.                       )




       Before: CLAY, GILMAN, and ROGERS, Circuit Judges.


       Rogers, Circuit Judge. Defendant James White appeals the district court’s denial of his

motion to vacate his sentence under 28 U.S.C. § 2255. On July 24, 2000, a jury convicted White for

his participation in a conspiracy to rob armored cars and local businesses at gunpoint. The sole issue

on appeal is whether White was denied the effective assistance of counsel on the theory that his

attorney prevented him from pleading guilty without also providing substantial assistance to the

government. For the reasons discussed below, we affirm the district court’s denial of White’s

motion to vacate his sentence.




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No. 07-3263
White v. United States

                                                  I.


       A jury convicted White on several counts related to his participation in multiple robberies.

On direct appeal, this court described White’s activities and conviction in the following manner:


               Taniguchi and White were both part of a broad-ranging conspiracy to rob
       armored car companies and local businesses of cash at gunpoint. Taniguchi was the
       mastermind behind the conspiracy, recruiting insiders and employees of the
       businesses that were targeted to assist in the execution of the robberies. White was
       one of the muscle-men of the operation, using his imposing size to carry out the
       actual robberies.
       ....
               On March 14, 2000, a grand jury for the Southern District of Ohio returned
       a six-count indictment against defendants Taniguchi and White. Count one charged
       Taniguchi and White with violation of the Hobbs Act, 18 U.S.C. § 1951, for their
       participation in a broad conspiracy involving multiple robberies; Count two charged
       Taniguchi and White with violation of the Hobbs Act, 18 U.S.C. § 1951, for their
       participation in the Metropolitan armored truck robbery; Count three charged White
       with brandishing a firearm in the commission of those crimes, in violation of 18
       U.S.C. § 924(c) . . . . A superseding indictment was filed on May 16, 2000. That
       indictment repeated the other charges but also added a bank larceny charge (Count
       seven), in violation of 18 U.S.C. § 2113(b), against Taniguchi and White. . . .
               Taniguchi and White both pleaded not guilty to these charges, and a jury trial
       commenced on July 10, 2000 before Judge Marbley in the United States District
       Court for the Southern District of Ohio. . . . The jury returned its verdict on July 24,
       2000, finding Taniguchi and White guilty on all counts.


United States v. Taniguchi, 49 F. App’x 506, 508-10 (6th Cir. 2002). On October 11, 2002, this

court affirmed White’s conviction and sentence. Id.


       On September 17, 2002, White filed a petition to vacate, set aside, or correct his sentence

under 28 U.S.C. § 2255. White claimed that:

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White v. United States

                Petitioner’s conviction was obtained and sentence imposed in violation of
        petitioner’s constitutional rights to effective assistance of counsel in that:
                (1) Trial counsel refused [to allow] petitioner to take the stand on his own
        behalf during his jury trial.
               (2) Trial counsel prevented petitioner from pleading guilty to the indictment
        without providing substantial assistance to the government.
                (3) Trial counsel failed to object and appellant counsel failed to raise on
        petitioner’s direct appeal under Rule 32 (plain error), trial court’s use of the ‘same
        conduct twice’ to determine petitioner’s sentence.


        A magistrate judge filed a report that recommended dismissing White’s first and third claims,

and granting an evidentiary hearing on claim two, and the district court adopted these

recommendations. White did not object to the dismissal of claims one and three. After the

evidentiary hearing, White filed a brief supporting his second ineffective-assistance claim. White

argued that his trial counsel was constitutionally ineffective because his counsel failed to explain the

Sentencing Guidelines properly, and that his trial counsel prevented White from pleading guilty

without also testifying against his co-defendant. Specifically, White argued that his trial counsel

“indicated there were only two options, go to trial or testify against Jay Taniguchi.” White then

added several allegations that appear to be unrelated to his second claim, including his trial counsel’s

potential conflicts of interest.


        The magistrate judge recommended dismissing the action, finding that the facts and

testimony from the evidentiary hearing did not support an ineffective-assistance-of-counsel claim

under Strickland v. Washington, 466 U.S. 668 (1984).               The district court adopted this




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White v. United States

recommendation, but granted a certificate of appealability on White’s second claim. On appeal, the

only issue before this court is:


        Was petitioner denied the effective assistance of counsel when his attorney prevented
        him from pleading guilty to the indictment without providing substantial assistance
        to the government?


                                                   II.


        On appeal, White focuses his arguments on his trial counsel’s alleged conflicts of interest.

White’s claim that he received ineffective assistance due to these conflicts, however, falls outside

of the scope of the only issue for which there is a certificate of appealability—ineffective assistance

based on the theory that White’s attorney prevented him from pleading guilty without also providing

substantial assistance to the government. Therefore, we do not reach the merits of this claim. To

the extent that White’s arguments can be construed to reach the sole issue on appeal, these arguments

fail under the standard set forth in Strickland.


                                                   A.


        White summarizes his sole argument on appeal in the following way: “A lawyer with several

actual conflicts can not provide effective assistance of counsel in plea negotiations.” This is not just

a tangential argument in support the certified issue, but appears to be an attempt to raise a completely




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White v. United States

different claim altogether.1 White’s brief hardly addresses how his trial counsel’s alleged conflicts

amounted to ineffective representation under Strickland.2 Appellant’s Br. at 13 (failure to subpoena

an unindicted co-conspirator with an alleged relationship with counsel “led Trial Counsel to provide

less than effective assistance to Petitioner in plea negotiations,” and “[a]nother lawyer would have

conducted more meaningful plea negotiations”). More specifically, White’s brief fails to argue how

these alleged conflicts relate to White’s claim that his counsel prevented White from pleading guilty

without also testifying against his co-defendant—the only issue certified to this court. Stating bald

allegations of his trial counsel’s conflicts of interest does not indicate how trial counsel might have

been deficient by presenting incomplete plea options. Furthermore, White’s brief does not argue

how these conflicts prejudiced him in the plea process.


       The magistrate judge’s Report and Recommendation explicitly chose not to address these and

similar issues because they fell outside of the scope of the claims White made in his § 2255 motion



       1
         This court denied White’s application for a partial certificate of appealability on the claims
not certified by the district court. In doing so, this court stated that the appeal would move forward
on the sole issue certified. White v. United States, No. 07-3263 (6th Cir. Sept. 18, 2007).
       2
         White argues that because of his conflict allegations, the precedent defining the standards
for ineffective assistance of counsel should be Cuyler v. Sullivan, 446 U.S. 335 (1980), rather than
Strickland. This would benefit White because under Sullivan, prejudice is presumed in certain
conflict contexts. Strickland, 466 U.S. at 692 (citing Sullivan, 446 U.S. at 345-50). Even if we were
to reach White’s conflict-of-interest claims, it is unlikely that Sullivan would apply to this case. See
Mickens v. Taylor, 535 U.S. 162, 175 (2002) (holding that Sullivan’s presumed prejudice standard
is established only when the conflict of interest arises out of multiple concurrent representation);
Stewart v. Wolfenbarger, 468 F.3d 338, 351 (6th Cir. 2006) (stating that in habeas cases brought
under 28 U.S.C. § 2254, this court applies the Strickland standard outside of the multiple-
representation context). We find no reason not to apply Strickland to this case.

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to vacate. The conflict-of-interest claims similarly fall outside of the scope of the sole issue certified

by the district court. Therefore, we do not reach the merits of these claims. See Dunham v. United

States, 486 F.3d 931, 935 (6th Cir. 2007) (“Dunham expands upon his ineffective assistance of

counsel argument to include claims that his counsel was ineffective for failing to adequately discuss

the consequences of his guilty plea and for failing to raise a double jeopardy objection. For us to

consider these claims would . . . go beyond the scope of the certificate of appealability . . . . Because

Dunham did not receive a certificate of appealability for these ineffective assistance claims, we do

not reach their merits.”).


                                                   B.


        Even if we were to conclude that White’s conflict-of-interest allegations were related to and

supported the issue certified on appeal,3 White still fails to demonstrate that his trial counsel’s

actions during the plea process amounted to ineffective assistance under Strickland. To succeed on

his ineffective-assistance-of-counsel claim, White has to prove two components: (1) his counsel’s

performance was deficient; and (2) prejudice, which means that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

Strickland at 687, 694; see Hill v. Lockhart, 474 U.S. 52, 59 (1985) (stating that the “prejudice”



        3
        The only potential connection between these two issues was suggested at oral argument,
when White’s counsel attempted to argue that White’s trial counsel’s alleged conflicts created an
improper incentive for trial counsel to recommend against reaching a plea agreement. This argument
does not appear to be supported by the record, but nonetheless fails the Strickland analysis as
described in this part.

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White v. United States

requirement in the plea context “focuses on whether counsel’s constitutionally ineffective

performance affected the outcome of the plea process”). The district court did not err in concluding

that White failed to prove either deficient representation or prejudice.


       In his affidavit in support of his motion to vacate, White stated the basis for his second claim

for ineffective assistance of counsel:


       I just wanted to go before the judge, plead guilty to the indictment and tell the judge
       the extent of my involvement in the charged crimes. Counsel informed me that the
       only way I can plead Guilty was for me to testify against my codefendant, Mr.
       Taniguchi, that the court will not accept a straight up guilty plea.


J.A. at 9. The magistrate judge’s Report and Recommendation correctly states that White’s

“allegation that he would have pleaded guilty had he known that he could do so without testifying

against co-defendant Taniguchi is belied by the record before this Court.” J.A. at 104. The report

proceeds to quote several examples from the evidentiary hearing that indicate that White’s trial

counsel explained the Sentencing Guidelines to White, discussed the potential impact of a plea on

his sentence, and coordinated a meeting with White and the Assistant U.S. Attorney to accept a plea.

J.A. at 4-9. The testimony shows that White chose not to follow through with this meeting and

repeatedly indicated that he “wanted to go to trial.” J.A. at 5-7. In Smith v. United States, 348 F.3d

545 (6th Cir. 2003), this court stated that


       [a] criminal defendant has a right to expect at least that his attorney will review the
       charges with him by explaining the elements necessary for the government to secure
       a conviction, discuss the evidence as it bears on those elements, and explain the


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No. 07-3263
White v. United States

        sentencing exposure the defendant will face as a consequence of exercising each of
        the options available.


Id. at 553.    White’s trial counsel met this burden here.         Because White’s trial counsel’s

representation did not “[fall] below an objective standard of reasonableness,” Strickland, 466 U.S.

at 688, the district court did not err in concluding that this representation was not constitutionally

deficient.


        Even if White’s counsel’s performance had been deficient, White fails Strickland’s second

prong requiring a showing of prejudice. White “did not demonstrate a reasonable probability that

he would have pled guilty but for his trial counsel’s allegedly ineffective performance.” Humphress

v. United States, 398 F.3d 855, 859 (6th Cir. 2005). White consistently maintained his innocence

on the charges in his indictment, even through the evidentiary hearing, and indicated that he wanted

the opportunity to explain to the judge that he was not guilty. “These declarations of innocence are

. . . not dispositive on the question” of whether a defendant would have pled guilty. Griffin v. United

States, 330 F.3d 733, 738 (6th Cir. 2003); see also Smith v. United States, 348 F.3d 545, 552 (6th

Cir. 2003). What is more dispositive of this question, however, is White’s own testimony during

the evidentiary hearing:


        Q. Mr. White, have you told the Court here that you wanted to plead guilty to the
        aspects of funneling money but you wouldn’t plead guilty to the firearm; is that right?


        A. Yes, sir.



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        Q. So, you were not willing to plead guilty to all of the counts in the indictment; is
        that right? You would never have pled guilty to a gun spec?


        A. Yes, sir.


J.A. at 274-275. Because White admittedly never wanted to plead guilty to the indictment, and

repeatedly indicated that he wished to go to trial, he cannot prove that he was prejudiced in the plea

process even if his counsel was found constitutionally deficient. White’s arguments fail both prongs

of the Strickland test.


                                                 III.


        For these reasons, we AFFIRM the judgment of the district court.




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