                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 13a0792n.06

                                          Case No. 11-2230                                 FILED
                                                                                       Aug 28, 2013
                           UNITED STATES COURT OF APPEALS
                                                                                 DEBORAH S. HUNT, Clerk
                                FOR THE SIXTH CIRCUIT

 KATHLEEN DOCHERTY,                                     )
                                                        )
         Petitioner-Appellant,                          )
                                                        )       ON APPEAL FROM THE
                 v.                                     )       UNITED STATES DISTRICT
                                                        )       COURT FOR THE EASTERN
 UNITED STATES OF AMERICA,                              )       DISTRICT OF MICHIGAN
                                                        )
       Respondent-Appellee.                             )
 _______________________________________                )

BEFORE: BATCHELDER, Chief Judge; SUHRHEINRICH and SUTTON, Circuit Judges.

       ALICE M. BATCHELDER, Chief Judge. Defendant-Appellant Kathleen Docherty

appeals the district court’s denial of her petition for a writ of habeas corpus under 28 U.S.C. § 2255.

She claims she received ineffective assistance of counsel in relation to federal drug charges. The

district court rejected her petition without a certificate of appealability (“COA”), but this Court

granted a COA on whether she received ineffective assistance during plea negotiations and a post-

plea debriefing with the government. For the reasons that follow, we AFFIRM.

                                                  I.

       This is the third time Docherty’s case comes before this Court. The story began with

Docherty’s facing state drug charges in June 2002. Wright Blake (who later represented Docherty’s

boss, the drug conspiracy ringleader Joseph Jeross) represented Docherty in the state charges, which

were ultimately dropped in December 2002. Docherty was arrested on federal drug charges in


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August 2002 on the basis of an initial federal complaint (the “August complaint”). The affidavit of

a Customs agent, which accompanied the August complaint, reported that Docherty and initial co-

defendants Adam Donald and Thomas Leto were involved in selling ecstasy. Docherty claims she

wanted to cooperate with investigators and that she said so after her arrest, but that she also told the

police that first, she wanted to speak to her attorney, Blake.

          Docherty did speak with Blake, but she did not cooperate afterward. She explained that, after

her August arrest, she called Blake to ask him to represent her in the federal case; that she told Blake

that Jeross would need representation; that she met with Blake to discuss the federal case; and that

Blake counseled her not to cooperate with the United States as a witness against the other

defendants, but then said he would not be representing her because he had decided to represent

Jeross.

          Blake claims that he did not represent Docherty at all in the federal case. But that statement

contradicts his testimony from a disciplinary hearing (held regarding one of Docherty’s subsequent

attorneys). And, in a Federal Rule of Criminal Procedure 44 motion, the United States alleged that

Blake had contacted the United States and said that he would be representing Docherty with regard

to the August complaint. Docherty and Jeross claim that Jeross paid Blake a large sum for both

Docherty and Jeross, a payment Blake denies.

          The district court dismissed without prejudice the August complaint, but in December 2002

another indictment for ecstasy sales was handed down (the “December indictment”), this time

including Jeross, Docherty, Leto, and Donald. Byron Pitts now represented Docherty. Leto, a drug




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courier and one of Docherty’s co-conspirators, cooperated with the government and signed a Rule

11 plea agreement on March 7, 2003. He described Docherty’s role in the conspiracy:

        Docherty handled the transactions with individual distributor-sellers. She received
        the drugs from Canada, permitted the pills to be repackaged for distribution in her
        home, doled out the repackaged pills to four or five distributors whom she
        “regulated,” kept detailed transactional and financial records, collected the profits
        that the distributors returned to her, and, finally, passed the profits along to Jeross.

United States v. Jeross, 521 F.3d 562, 580 (6th Cir. 2008). At times, Docherty managed Leto and

collected profits from his sales. Id.

        The United States also made a Rule 11 plea offer to Docherty in early March 2003 that

Docherty did not accept. She claims she was never told of and never saw the offer, a point that Pitts

disputes. She pleaded guilty without a Rule 11 agreement:

        In April of 2003, Joseph Jeross and Kathleen Docherty pled guilty to, and were later
        sentenced for, their roles in a Detroit-based conspiracy to possess and distribute at
        least 100,000 Ecstacy pills. Jeross was sentenced to 270 months in prison and
        Docherty was sentenced to 188 months in prison. Their sentences were later vacated
        and remanded by this court following the Supreme Court’s decision in United States
        v. Booker, 543 U.S. 220 (2005). On remand, the district court imposed the same
        sentences . . . .

Jeross, 521 F.3d at 567. This Court affirmed Docherty’s post-Booker resentencing in 2008. Id.

        Just a few moments before Docherty pleaded guilty during the April 2003 plea hearing, the

district court judge addressed a motion the United States had filed under Federal Rule of Criminal

Procedure 44, asking for a hearing on conflicts of interest. The motion suggested conflicts of interest

because Pitts and Blake shared an office, because Blake had previously represented Docherty in the

same matter, and because Blake appeared to be continuing to represent Docherty in forfeiture

proceedings. The judge made a few inquiries about the relationship between Blake and Pitts,

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11 2230, Docherty v. USA



explaining that he had been told that Blake and Pitts shared an office, but not finances. When the

judge asked whether Docherty had “any difficulty with the fact that Mr. Blake and Mr. Pitts share

office space and that their agreement for representation is separate as to” Docherty and Jeross,

Docherty said “I’m fine with that.” In response to the AUSA’s asking “Mr. Jeross and Ms. Docherty,

do you waive any such conflicts if one does exist?” Docherty and Jeross both said “yes.”

        After Docherty pleaded guilty, the United States arranged to have her debriefed. Pitts

directed Docherty to the room where the debriefing was to occur, but then left. The United States

eventually stopped the meeting because Docherty contradicted herself, hurt her case through what

she said, and provided no useful information.

        After the Sixth Circuit’s 2008 affirmance of Docherty’s resentencing, Docherty moved the

district court to vacate her sentence under 28 U.S.C. § 2255 and to give her an evidentiary hearing

because she had received ineffective assistance of counsel due to Blake’s and Pitts’s conflicts of

interest. The district court ordered the parties to expand the record as it related to Docherty’s

motion, but then denied Docherty’s § 2255 motion and granted no COA.

        Docherty moved this Court for a certificate of appealability. We denied the motion with

respect to Docherty’s conflict of interest claims because the district court made an adequate inquiry

and because Docherty had voluntarily waived the conflict. But we granted a COA on two issues:

“(1) whether counsel’s performance was constitutionally ineffective during plea negotiations and

Docherty’s debriefing with the government; and (2) whether the district court should have held an




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evidentiary hearing on Docherty’s claims that counsel performed ineffectively during plea

negotiations and her debriefing with the government.”

        Now, the main part of Docherty’s ineffective assistance claim is that Blake and Pitts delayed

and discouraged her from cooperating with the United States. She also claims Pitts never told her

of a Rule 11 plea offer, and she challenges Pitts’s leaving her during a post-plea debriefing.

                                                  II.

        On appeal of the district court’s denial of a motion to vacate a sentence pursuant to 28 U.S.C.

§ 2255, we review the lower court’s legal conclusions de novo and its factual findings for clear error.

Smith v. United States, 348 F.3d 545, 550 (6th Cir. 2003). “Clear error occurs only when we are left

with the definite and firm conviction that a mistake has been committed.” Moss v. United States,

323 F.3d 445, 454 (6th Cir. 2003) (internal quotation marks omitted).

        We review for abuse of discretion a district court’s refusal to conduct a § 2255 evidentiary

hearing. Arredondo v. United States, 178 F.3d 778, 782 (6th Cir. 1999). Though “[a] prisoner who

files a motion under Section 2255 challenging a federal conviction is entitled to a prompt hearing,”

Smith, 348 F.3d at 550 (internal quotation marks omitted), no hearing is required if the petitioner’s

claims cannot be accepted as true because the record contradicts them, they are inherently incredible,

or they are legal conclusions rather than statements of fact. See Arredondo, 178 F.3d at 782.

                                                  A.

        Docherty claims she received ineffective assistance of counsel when her attorneys delayed

and discouraged her cooperating with the United States. To succeed on an ineffective assistance




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claim, a defendant must show that counsel’s deficient performance prejudiced the defense.

Strickland v. Washington, 466 U.S. 668, 687 (1984). Our review of counsel’s performance is “highly

deferential.” Id. at 689. We “judge the reasonableness of counsel’s challenged conduct on the facts

of the particular case, viewed as of the time of counsel’s conduct.” Id. at 690. The defendant “must

identify the acts or omissions of counsel that are alleged not to have been the result of reasonable

professional judgment.” Id. To establish “prejudice,” a “defendant 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. “The likelihood of a different result must be substantial, not

just conceivable.” Harrington v. Richter, 562 U.S.      , 131 S. Ct. 770, 792 (2011). And, “[i]f it is

easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that

course should be followed.” Strickland, 466 U.S. at 697.

        Docherty seeks to show prejudice through Leto’s receiving a lower sentence than she did.

The idea is that, had Docherty cooperated sooner, she might have obtained a deal more like Leto’s.

But the comparison is inapt. It is true that Leto cooperated, that he had a Rule 11 agreement, that

the United States moved for a USSG § 5K1.1 downward departure, and that Leto received less prison

time (35 months) than Docherty. But       and contrary to Docherty’s claim that she and Leto were of

“similar culpability”      Leto played a small role in the conspiracy. By contrast, Docherty took a

weekly salary from Jeross for her managing drug distribution, and in her home drugs were deposited,

repackaged, and distributed. She collected distributors’ profits and returned them to Jeross.




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Docherty, unlike Leto, was a manager and supervisor of criminal activity involving five or more

participants and, accordingly, she received a higher sentence.

         Nor has Docherty shown a substantial likelihood that a different result would have followed

from her cooperating sooner. In fact, when Docherty debriefed with the United States, the prosecutor

took the unusual step of ending the meeting early because he found Docherty’s statements incredible

and contradictory. He ended the meeting prematurely as a matter of conscience because “it was

obvious that [Docherty] was doing a disservice to herself by being there.” We find that Docherty

did not demonstrate prejudice and that the district court did not abuse its discretion by denying her

an evidentiary hearing.1

                                                          B.

         Docherty claims Pitts did not tell her that the government had made a Rule 11 plea offer. A

defendant who has been offered a plea deal has a Sixth Amendment right to effective representation

during plea negotiations. See Padilla v. Kentucky, 559 U.S.                  , 130 S. Ct. 1473, 1486 (2010). In

Missouri v. Frye, 566 U.S.          , 132 S. Ct. 1399, 1408 (2012), the Court held that “as a general rule,

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.” Id. To show prejudice, “defendants

must demonstrate a reasonable probability they would have accepted the earlier plea offer had they

been afforded effective assistance of counsel.” Id. at 1409.


         1
          Though Docherty has not established prejudice, we find W right Blake’s actions (if true) very troubling. In
August 2002, after Blake had already decided to represent Jeross in the federal case that Jeross anticipated and that
materialized in the December indictment, Blake allegedly counseled Docherty not to cooperate. This advice could have
helped Jeross at Docherty’s expense. The possibility of Blake’s giving such advice during his representation of Docherty
and Jeross is unacceptable, and illustrates a peril of joint representation. See Moss, 323 F.3d at 455 56.

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         Even if Pitts never communicated the offer to Docherty,2 Docherty has not shown prejudice

because she has not shown a “reasonable probability” that she would have accepted the offer.

Docherty characterizes the offer as a “no-value” plea agreement, and says that it offered her

“nothing.” The gist of her case on appeal is not that Pitts failed to communicate an acceptable offer,

but that her attorneys’ discouraging her from cooperating kept her from obtaining an attractive offer

in the first place. Docherty’s characterization of the offer prevents her demonstrating a reasonable

probability that she would have accepted the offer earlier. Because Docherty has not shown

prejudice, we hold that the district court did not abuse its discretion by denying an evidentiary

hearing.

                                                           C.

         Docherty argues that Pitts’s leaving her during the post-plea debriefing was ineffective

assistance. Pitts accompanied Docherty to the debriefing room, then left after ensuring that she

would be immunized (pursuant to the United States’s Kastigar letter). We need only address

whether this actually prejudiced Docherty’s defense. See Strickland, 466 U.S. at 697; see also Wingo

v. United States, 341 F. App’x 132, 134-35 (6th Cir. 2009) (finding that once the defendant, with

advice of counsel, signed a Kastigar letter, subsequent debriefings were not adversarial proceedings

and the defendant needed to show actual prejudice from counsel’s absence). We examine whether

Docherty has shown a reasonable probability that, but for Pitts’s leaving, the result of the proceeding

would have been different. See Strickland, 466 U.S. at 694.



         2
          W hether Pitts told Docherty of the offer is unclear. Pitts says he did, and that he advised Docherty of all her
options; he claims she was not interested in cooperating.

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        Here, Docherty has not shown prejudice. The United States ended the debriefing because

Docherty provided useless information and contradicted herself. The AUSA present at the meeting

said:

        We terminated the meeting, which is unusual. This - - it’s to the government’s
        benefit to sit down and let a defendant just talk as long as they want. We out of
        conscience terminated the meeting because it was obvious that she was doing a
        disservice to herself by being there.

                In the course of the meeting, she did not even admit to the - - to - - she was
        more than minimizing her role in this conspiracy. By inadvertence, she was telling
        us information that was inconsistent with facts we separately knew to be proved and
        even facts that she herself had come into the court and under oath admitted to having
        committed - - conducted in - - in terms of number of transactions.

               Yes, she came in and met with us. We terminated the meeting, and as the
        Court knows, we have not offered a 5(k) for her because she did not provide any
        substantial assistance to the government.

Docherty had nothing to offer other than what reduced her credibility. We have no reason to believe

that Pitts’s presence would have changed that. Indeed, under Docherty’s own theory that Pitts

discouraged her from cooperating      it is hard to see how Pitts’s presence would have helped her.

We find that the district court did not abuse its discretion by denying an evidentiary hearing and that

it correctly denied Docherty’s petition.

                                                 III.

        For the foregoing reasons, we AFFIRM the district court’s denial of Docherty’s petition.




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