                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 17a0197n.06

                                        Case No. 14-2555

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

                                                                                FILED
                                                                           Apr 04, 2017
DAVID MACLLOYD,                                      )
                                                                      DEBORAH S. HUNT, Clerk
                                                     )
       Petitioner-Appellant,                         )
                                                     )      ON APPEAL FROM THE UNITED
v.                                                   )      STATES DISTRICT COURT FOR
                                                     )      THE EASTERN DISTRICT OF
UNITED STATES OF AMERICA,                            )      MICHIGAN
                                                     )
       Respondent-Appellee.                          )
                                                     )
                                                     )


BEFORE: BOGGS, GILMAN, and DONALD, Circuit Judges

       BERNICE BOUIE DONALD, Circuit Judge. This case presents a dispute over the

proper standard for deciding to forego an evidentiary hearing on a 28 U.S.C. § 2255 motion to

vacate, set aside, or correct a sentence. The statute requires the district court to “grant a prompt

hearing” on the motion “[u]nless the motion and the files and records of the case conclusively

show that the prisoner is entitled to no relief.” Defendant David MacLloyd argues that the

district court abused its discretion when it improperly denied his motion without granting him an

evidentiary hearing because it applied the incorrect standard to his case. The district court held

that the defendant failed to show deficient performance and prejudice as required for a finding of

ineffective assistance of counsel. For the reasons that follow, we REVERSE the district court’s

decision and REMAND the case for further proceedings.
Case No. 14-2555, MacLloyd v. United States


                                                 I.

       On May 22, 2008, a federal grand jury returned an indictment charging Defendant David

MacLloyd and his brother, Clifford MacLloyd, among other co-defendants, with one count of

conspiracy to distribute and to possess with the intent to distribute more than five kilograms of

cocaine, in violation of 21 U.S.C. §§ 846 and 841(a)(1). (R. 1, ID 1-2). At this time, MacLloyd

retained two attorneys to represent him, Nicholas Kazmerski and Thomas Loeb, with Loeb

serving as lead counsel. (R. 5, ID 26; R. 40, ID 72; R. 184, ID 885-86). MacLloyd agreed to

pay Loeb’s $30,000 retainer in installments. (R. 267, ID 2547). In the months following the

indictment, MacLloyd and his counsel attended a reverse proffer meeting with the U.S.

Attorney’s Office and the DEA, during which the government offered MacLloyd a twelve-year

plea bargain. (R. 252, ID 2469). MacLloyd did not entertain the plea at that time. (Id.) Also

during this time period, the court agreed to adjourn the plea cut-off date on multiple occasions

while the parties continued plea negotiations. (R. 181, ID 853-59; R. 182, ID 864). At some

point, the government provided Loeb with a formal written plea offer, under which the

government would have recommended a sentence of approximately 11 to 14 years of

imprisonment in exchange for MacLloyd pleading guilty and cooperating with the government.

Ultimately, the district court set January 13, 2009 as the final date for the parties to reach a plea

agreement, and it scheduled a hearing for that date.

       As Loeb and MacLloyd walked into the courtroom on the day of the January 13th

hearing, Loeb mentioned to MacLloyd that “there are talks of a plea for 11-14 years.” (R. 252,

ID 2469). Shortly thereafter, the hearing began. MacLloyd claims that Loeb’s comment on the

morning of the hearing was the first time that MacLloyd heard of this particular plea offer.

During the hearing, Loeb informed the court that the parties had not reached an agreement on a



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Case No. 14-2555, MacLloyd v. United States


plea and that MacLloyd would like to exercise his right to a trial. (R. 183, ID 871). At this

point, the district court asked MacLloyd a series of questions regarding his understanding of the

specifics of the plea he was turning down. (Id. at 872-73). The district court asked whether

Loeb had reviewed the agreement with MacLloyd and whether he had an opportunity to discuss

the agreement with Loeb. (Id.) After consulting with his attorney, MacLloyd answered each of

these questions in the affirmative. (Id.) In the same hearing, MacLloyd’s brother also indicated

that he intended to go to trial, but only because the government’s plea was contingent on both

brothers entering a guilty plea and MacLloyd had made clear that he would be pleading not

guilty. (Id. at 874).

        After the hearing, Loeb allegedly told MacLloyd that Loeb’s secretary would set up a

time for Loeb to go over the plea with MacLloyd. (R. 267, ID 2547). However, when Loeb did

contact MacLloyd days later, it was not to discuss the plea agreement, but rather MacLloyd’s

payment of the $15,000 unpaid balance on Loeb’s retainer. (Id.) Loeb stated that he would not

perform any further work on MacLloyd’s case, including discussing the plea agreement, until

payment was made. (Id.) A few weeks after this exchange, Loeb withdrew as MacLloyd’s

counsel, citing a break-down in the attorney-client relationship. (R. 58, ID 192-95).

        A little more than two weeks after the January 13th hearing, on January 29, 2009, a grand

jury returned a superseding indictment charging MacLloyd with additional counts of conspiracy

to distribute and to possess with intent to distribute, aiding and abetting another in the possession

with intent to distribute, using a communications facility to commit conspiracy, and maintaining

a “drug-involved premises.” (R. 54, ID 166-75). On November 19, 2009, the grand jury

returned a materially identical second superseding indictment. (R. 117, ID 387-97). MacLloyd

pled not guilty, and, on August 26, 2010, was convicted on all counts. (R. 143, ID 549-51).



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Case No. 14-2555, MacLloyd v. United States


After the trial, MacLloyd’s trial counsel withdrew and the court appointed a new attorney,

Margaret Raben, for sentencing.      MacLloyd alleges that, while conferring with Raben, he

discovered for the first time that the government had made a formal written plea offer of 11 to 14

years, which was the subject of the January 13, 2009 hearing. On February 6, 2012, the district

court sentenced MacLloyd to a total term of 360 months’ imprisonment.

       MacLloyd filed a timely pro se motion to vacate, set aside, or correct his sentence under

28 U.S.C. § 2255, presenting nineteen claims for consideration, one of which was ineffective

assistance of counsel for not properly communicating plea deals. (R. 252, ID 2475). In the

motion, MacLloyd claimed that his “attorneys were all given plea deals which were never shown

to . . . or properly communicated to [him].” (Id.) He further claims that each of the pleas had

cooperation with the government attached to them, which would have persuaded him to take the

deal. (Id.) The government opposed MacLloyd’s motion. On November 20, 2014, the district

court denied MacLloyd’s motion in full without a hearing.          While finding that MacLloyd

“fail[ed] to identify exactly which acts or omissions were outside the wide range of

professionally competent assistance with regard to each of the issues asserted,” the district court

did not discuss the factual allegations offered by MacLloyd in relation to the January 13, 2009

hearing. (R. 268, ID 2556). The district court also determined that MacLloyd “failed to show

the prejudice required for a finding of ineffective assistance of counsel.” (Id.) This court granted

a certificate of appealability on the issue of “whether the district court should have held an

evidentiary hearing on MacLloyd’s claim that he was denied the effective assistance of counsel

because Loeb did not fully advise him of a favorable plea offer.” (Dkt. No. 5-2, at 4).




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Case No. 14-2555, MacLloyd v. United States


                                                 II.

   a) Standard of Review

       This court has held that “[a] decision not to hold an evidentiary hearing on a motion for

relief under 28 U.S.C. § 2255 is reviewed for abuse of discretion.” Huff v. United States, 734

F.3d 600, 607 (6th Cir. 2013) (citing Valentine v. United States, 488 F.3d 325, 333 (6th Cir.

2007)). “A court abuses its discretion when it ‘relies on clearly erroneous findings of fact,

improperly applies the law, or employs an erroneous legal standard,’ or when we are ‘firmly

convinced’ that the trial court ‘committed a clear error of judgment.’” United States v.

Kilpatrick, 798 F.3d 365, 378 (6th Cir. 2015) (quoting United States v. Miner, 774 F.3d 336, 348

(6th Cir. 2014)). “The allegations of a pro se habeas petition . . . are entitled to a liberal

construction,” which may “require[] active interpretation in some cases to construe a pro se

petition to encompass any allegation stating federal relief.” Franklin v. Rose, 765 F.2d 82, 85

(6th Cir. 1985) (citations and internal quotation marks omitted).

   b) The District Court Applied an Erroneous Evidentiary Hearing Standard

       28 U.S.C. § 2255(b) requires that “[u]nless the motion and the files and records of the

case conclusively show that the prisoner is entitled to no relief, the court shall . . . grant a prompt

hearing thereon, determine the issues and make findings of fact and conclusions of law with

respect thereto.” 28 U.S.C. § 2255(b). In general, a district court judge “may rely on his or her

recollections of the trial” in denying a § 2255 petition. Arrendondo v. United States, 178 F.3d

778, 782 (6th Cir. 1999). However, the Supreme Court has reiterated that the provision of a

hearing can be crucial to the function of § 2255 and that a hearing should be granted unless the

motion can be “conclusively determined either by the motion itself or by the ‘files and records’

in the trial court.” Machibroda v. United States, 368 U.S. 487, 494 (1962). The Machibroda



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Case No. 14-2555, MacLloyd v. United States


Court determined that the district court could neither rely on the files and records of the trial

court nor the personal knowledge or recollection of the district judge where the factual

allegations at issue “relate[] primarily to purported occurrences outside the courtroom and upon

which the record could, therefore, cast no real light.” Id. at 494-95.

       In line with the Supreme Court’s reasoning in Machibroda, we have held that a district

court may only forego a hearing where “the petitioner’s allegations ‘cannot be accepted as true

because they are contradicted by the record, inherently incredible, or conclusions rather than

statements of fact.’” Arrendondo, 178 F.3d at 782 (quoting Engelen v. United States, 68 F.3d

238, 240 (8th Cir. 1995)); see also Valentine, 488 F.3d at 333. This Court has further determined

that “[t]he burden on the petitioner in a habeas case for establishing an entitlement to an

evidentiary hearing is relatively light.” Valentine, 488 F.3d at 333 (quoting Turner v. United

States, 183 F.3d 474, 477 (6th Cir. 1999)). Although “[t]he statute does not require a full blown

evidentiary hearing in every instance[,] . . . where there is a factual dispute, the habeas court

must hold an evidentiary hearing to determine the truth of the petitioner’s claims.” Smith v.

United States, 348 F.3d 545, 550-51 (6th Cir. 2003) (internal citations and quotation marks

omitted).

       In denying MacLloyd’s ineffective assistance of counsel claims, the district court

considered collectively, rather than individually, MacLloyd’s complaints against four of the five

attorneys who represented him throughout the proceedings against him. The district court

concluded that “Defendant fails to identify exactly which acts or omissions were outside the

wide range of professionally competent assistance with regard to each of the issues asserted,”

and that “he has likewise failed to show the prejudice required for a finding of ineffective

assistance of counsel.” (R. 268, ID 2555-56). The district court offered no reasoning to support



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Case No. 14-2555, MacLloyd v. United States


a finding that, regarding MacLloyd’s claims involving Loeb, the record conclusively shows that

MacLloyd is not entitled to relief, nor did the district court expressly make that finding. The

district court offered no discussion of the allegations offered by MacLloyd and made no mention

whatsoever of the standard for foregoing an evidentiary hearing nor of the case law interpreting

this standard.

         The district court relied on this court’s rejection of ineffective assistance claims “that rest

upon conclusory, unsupported allegations of counsel’s deficient performance.” (R. 268, ID

2555).    This, however, would be a proper inquiry for the district court to make after an

evidentiary hearing, having considered not only the pleading and the affidavits, but the whole of

the testimony. Machibroda, 368 U.S. at 495. In determining whether to forego an evidentiary

hearing, the district court must determine that the motion, files, and records of the case

“conclusively show” that the petitioner is entitled to no relief. The district court did not make

this determination in denying MacLloyd an evidentiary hearing. As such, the district court

abused its discretion by employing an erroneous legal standard.

   c) Application of Appropriate Standard

         In applying the proper standard for denying an evidentiary hearing for MacLloyd’s

ineffective assistance claims, we must consider whether the record “conclusively shows” that

MacLloyd is entitled to no relief for his claims of ineffective assistance of counsel.               To

effectively make an ineffective assistance claim, MacLloyd must show that Loeb provided

deficient performance and that MacLloyd was prejudiced by the deficient performance. Huff,

734 F.3d at 606; see also Strickland v. Washington, 466 U.S. 668, 694 (1984) (establishing the

two-prong test for ineffective assistance of counsel claims). Considering the precedent of this

court, the record in MacLloyd’s case does not conclusively show that his claim of deficient



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Case No. 14-2555, MacLloyd v. United States


performance lacks merit. Nor does the record conclusively show that the deficient performance

did not prejudice his defense.

           1) Deficient Performance

       Reading the first prong of the Strickland test in accordance with the § 2255(b) evidentiary

hearing standard, the question is whether the record in MacLloyd’s case conclusively shows that

MacLloyd is not entitled to relief on the grounds that his counsel, Mr. Loeb, rendered a deficient

performance. It does not.

       The Supreme Court has held that “defense counsel has the duty to communicate formal

offers from the prosecution to accept a plea on terms and conditions that may be favorable to the

accused.” Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012). Further, the Frye Court continued

that where “defense counsel allow[s] the offer to expire without advising the defendant or

allowing him to consider it, defense counsel did not render the effective assistance the

Constitution requires.” Id. It is not enough that an attorney made the petitioner aware of the

offer. Rather, the attorney must review the charges with the defendant, including a discussion of

the elements necessary for the conviction, the evidence that may support those elements, and the

sentencing exposure that the defendant faces. Smith, 348 F.3d at 552-53. “The failure of defense

counsel to provide professional guidance to a defendant regarding his sentence exposure prior to

a plea may constitute deficient assistance.” Id. at 553 (citations and quotation marks omitted).

       MacLloyd alleges that Loeb provided ineffective assistance of counsel by not fully

informing him of the written plea agreement offered by the government prior to the January 13,

2009 hearing. (R. 252, ID 2475). He claims that Loeb informed him moments before the

hearing that “there [we]re talks of a plea for 11-14 years,” with no further specifics. (Id. at

2469). In support of this claim, MacLloyd offered his own testimony that he was unaware that



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Case No. 14-2555, MacLloyd v. United States


there was a written formal plea offer, as well as corroborating evidence, particularly his surprise

when his brother’s attorney accosted MacLloyd about turning down the plea. He also provides a

potential motive for Loeb’s action, the alleged non-payment of Mr. Loeb’s retainer. By contrast,

the government’s argument that the record forecloses the need for an evidentiary hearing relies

primarily on MacLloyd’s testimony during the January 9, 2013 hearing that he understood the

plea and had discussed the plea with his attorneys. The government points out that the district

court may rely on recollections from the trial and the sentencing phase when reaching the

decision to forego a hearing. The government further argues that MacLloyd only mentioned the

payment issue between him and Loeb in the addendum filed eleven months after the motion to

vacate was initially filed, and only stated that he relied on Loeb during the January 13, 2009

hearing for the first time on appeal.

        An evidentiary hearing is required where the defendant “offers more than a mere

assertion of his innocence,” but rather “presents a factual narrative of the events that is neither

contradicted by the record nor ‘inherently incredible.’” Valentine, 488 F.3d at 334 (citation

omitted). MacLloyd has presented a factual narrative, including corroboration and motive, that

rises above the level of mere assertions. However, MacLloyd’s statements at the January 13,

2009 hearing that he had discussed the plea offer with counsel contradict MacLloyd’s narrative

on appeal that he had not discussed the offer with his counsel.         In spite of this apparent

contradiction, precedent favors granting MacLloyd a hearing, as this court has a history of

granting hearings in spite of a defendant’s statements on the record that he was aware of and

rejected a plea offer.

        In Smith, this court determined that, although the record clearly established that the

defendant was aware of the plea offer, a hearing was still necessary in order to determine



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Case No. 14-2555, MacLloyd v. United States


whether the defendant’s attorney had fully informed the defendant of the nature of the plea

agreement. 348 F.3d at 552-53. Further, the Supreme Court has held that, when considering

whether an evidentiary hearing is appropriate, “the barrier of the plea or sentencing proceeding

record, although imposing, is not invariably insurmountable.” Blackledge v. Allison, 431 U.S.

63, 74 (1977). Baker v. United States, the case cited by the government, is not persuasive. In

Baker, this court rejected a defendant’s attempt to vacate his guilty plea on the grounds that the

prosecutor broke previously undisclosed promises offered in exchange for a plea. 781 F.2d 85,

92 (6th Cir. 1986). In that case, the defendant knowingly pled guilty after receiving advice from

counsel, a point he did not contest in his appeal. Id. Further, the defendant acknowledged that

he was fully aware of the government’s promise, as was his attorney, at the time that he stated

before the court that there had been no additional promises. MacLloyd’s petition is more closely

aligned with Smith than it is with Baker because Mr. MacLloyd asserts that he was unaware of

the contours of the plea offer at the time he rejected it.

        In addition, the factual narrative put forward by MacLloyd “relate[s] primarily to

purported occurrences outside the courtroom and upon which the record could, therefore, cast no

real light.” Machibroda, 368 U.S. at 494-95. MacLloyd points to conversations, or the lack

thereof, between Loeb and himself, which would not be reflected in the record before the court.

Nor can we say that the district judge was able to “completely resolve [these questions] by

drawing upon his own personal knowledge or recollection” of the proceedings. Id. at 495. The

district court did not provide its reasoning for denying a hearing, and this court has previously

declined to assume what the district court’s unstated recollections would be under similar

circumstances. Christopher v. United States, 605 F. App’x 533, 538 (6th Cir. 2015).




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Case No. 14-2555, MacLloyd v. United States


       Finally, the burden for receiving an evidentiary hearing under § 2255 is light. This court

has previously found that burden to be met relying only on the record and the defendant’s

declaration supporting his claim. Id.; see also Pola v. United States, 778 F.3d 525, 535 (6th Cir.

2015) (requiring a hearing based on the record and defendant’s affidavit); Smith, 348 F.3d at 551,

554 (requiring a hearing based on the record and defendant’s “self-serving testimony” that he

would have pled guilty had he been fully informed by his attorney). The fact that the petitioner’s

allegations may be “improbable” is insufficient to forego a hearing. Machibroda, 368 U.S. at

495. Indeed, the petitioner’s “claim may prove false at the evidentiary hearing, but [where] it is

impossible to assess [the] veracity based on th[e] record alone, [t]he purpose of the hearing . . . is

to allow the court to make these factual determinations based on more than a defendant’s

affidavit and the contrary representations of the government." Valentine, 488 F.3d at 334.

Considering the precedent in favor of granting a hearing, MacLloyd’s specific allegations, and

the light burden necessary to receive an evidentiary hearing, the claim put forward by MacLloyd

regarding his counsel’s deficient performance satisfies his obligations and entitles him to “an

opportunity to support them by evidence.” Machibroda, 368 U.S. at 495 (quoting Walkter v.

Johnson, 312 U.S. 275, 287 (1941)).

            2) Prejudice

       Under Strickland, we must also determine whether the record conclusively shows that

counsel’s   deficient   performance     could    not     have   prejudiced   MacLloyd’s      defense.

In circumstances where “[h]aving to stand trial, not choosing to waive it, is the prejudice

alleged,” a defendant must show that, but for the deficient performance of counsel, there is a

reasonable probability: (1) “that the plea offer would have been presented to the court”; (2) “that

the court would have accepted its terms”; and (3) “that the conviction or sentence, or both, under



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Case No. 14-2555, MacLloyd v. United States


the offer’s terms would have been less severe than under the judgment and sentence that in fact

were imposed.” Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012). “A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In

showing that the plea would have been presented to the court, the defendant must show that he

“would have accepted the plea and the prosecution would not have withdrawn it in light of

intervening circumstances.” Id. In this circuit, defendant’s statements alone are sufficient to

support a finding that he would have accepted the offer. Griffin v. United States, 330 F.3d 733,

737 (6th Cir. 2003) (citation omitted). However, “[t]he failure to hold an evidentiary hearing

would be of no import if the alleged defective performance were inconsequential.” Huff, 734

F.3d at 608.

       MacLloyd asserts, and the government does not contest, that the only question is whether

MacLloyd would have accepted the plea offer if he had been properly advised of it by counsel.

In support of his argument that he was prejudiced by his counsel’s deficient performance,

MacLloyd asserts that he “would have definitely taken the plea bargain,” especially given the

fact that it included the prospect of cooperation that could have reduced his sentence even

further. (Dkt. No. 5-2 (quoting R. 252, ID 2475)). He also claims that the disparity between the

11-14 years offer and the potential life sentence he was facing, as well as the 30 years he

ultimately received, establishes prejudice. Finally, he argues that the overwhelming evidence

against him, coupled with the fact that he never actually claimed factual innocence, suggests that

he was prejudiced by his counsel’s actions.

       The government does not challenge the disparity between the offered plea agreement and

MacLloyd’s potential or actual sentence. Nor does the government challenge that the weight of

the evidence against MacLloyd made a plea agreement the more pragmatic decision. Rather, the



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government contends that, as shown in the record, the prosecution offered, and MacLloyd

rejected, numerous offers during the lead up to trial. The government argues that this record of

rejection contradicts Mr. MacLloyd’s assertion that he would have accepted the plea offer that

expired on January 13, 2009. However, the government has not provided evidence in the record

establishing that any later plea offers extended to MacLloyd were substantially similar to the plea

offer that expired on January 13, 2009.       Specifically, the record does not make clear the

sentences offered in the later plea agreements. Nor does it specify whether cooperation was

offered with any of the agreements after the one extended on January 13, 2009. Without

sufficient evidence in the record describing these offers, we can neither determine that

MacLloyd’s narrative is “contradicted by the record” nor that it is “inherently incredible.”

Valentine, 488 F.3d at 334.

       Further, as discussed in the previous section, the burden for receiving an evidentiary

hearing under § 2255 is light, and may be met by relying only on the record and the defendant’s

declaration supporting his claim that he would have accepted the offer. MacLloyd provides

more support for this claim by pointing to the “disparity in sentences [offered and received]” and

the strength of the evidence presented against him. Griffin, 330 F.3d at 738-39. Based on the

evidence provided, we cannot say that the record conclusively shows that MacLloyd was not

prejudiced by his counsel’s deficient performance.

                                              III.

       Because MacLloyd has made the requisite showing to entitle him to a hearing on the

grounds that his counsel rendered deficient performance and that he was prejudiced by the

deficient performance, an evidentiary hearing is required by 28 U.S.C. § 2255. Based on the




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foregoing analysis, we REVERSE the district court’s dismissal and REMAND this case for an

evidentiary hearing in accordance with this decision.




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