                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 09a0552n.06

                                   Case Nos. 07-1466 and 07-2113

                            UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                                                                      FILED
 KARL WINGO,                                          )                           Aug 11, 2009
                                                      )                      LEONARD GREEN, Clerk
           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, DAUGHTREY and MOORE, Circuit Judges.

          ALICE M. BATCHELDER, Circuit Judge. Petitioner Karl Wingo (“Wingo”) seeks

reversal of the district court’s denial of his motion for relief under 18 U.S.C. § 2255, and of his

motion for bond pending the appeal of the denial of that motion. Neither claim has merit. We

affirm.

                                                 I.

          Finding that he had been denied counsel at a critical stage of the criminal proceedings —

namely, during his debriefing sessions with the government as part of his entering into a plea

agreement — the district court originally granted Wingo’s § 2255 motion on November 27, 2006,

and vacated his conviction for participating in a continuing criminal enterprise (“CCE”) in violation

of 21 U.S.C. § 848 (2006). Wingo v. United States, No. 04-71558, 2006 WL 3446255 (E.D. Mich.

Nov. 27, 2006). The government moved for reconsideration, arguing that the record did not support
Wingo’s claim. The district court granted the motion, held another evidentiary hearing, and in an

August 29, 2007, opinion, held that even if Wingo was denied counsel at a critical stage, and

specifically at the point when Wingo signed the “Kastigar”1 letter granting him immunity in

exchange for his pleading guilty and cooperating with the government, the government had shown

that he was not prejudiced by the denial. Wingo v. United States, No. 04-71558, 2007 WL 2480731,

at *4 (E.D. Mich. Aug. 29, 2007). The court held that Wingo was therefore not entitled to relief, and

reinstated the CCE conviction. The district court granted a certificate of appealability (“COA”) on

the sole question of whether Wingo’s Sixth Amendment right to effective assistance of counsel was

violated when his trial counsel was absent during debriefing sessions with government agents. This

appeal followed.

       Ineffective-assistance-of-counsel claims present mixed questions of law and fact, which we

review de novo. Mallet v. United States, 334 F.3d 491, 497 (6th Cir. 2003). In this appeal, Wingo

claims that his counsel failed to explain the limited extent of the immunity granted to Wingo by the

Kastigar letter, did not attend the debriefings, and “provided erroneous advice about the sentence

Wingo would be exposed to if convicted at trial, resulting in Wingo’s rejection of a plea offer made

during the debriefings,” and in the government’s using against him at trial the information that

Wingo had provided during the debriefings.

       We turn first to Wingo’s claim that his counsel failed to explain the scope of the possible

penalties for the offenses with which Wingo was charged. Wingo has attempted to couch this claim

as prejudice he suffered because his counsel was not present during the debriefings. Our review of

his § 2255 motion and of the record, however, satisfies us that he never presented this claim to the


       1
        See Kastigar v. United States, 406 U.S. 441 (1972).

                                                       2
district court. We therefore agree with the government that it is not included within the COA.

Furthermore, even if we could interpret the COA to include this claim, it is abundantly clear from

the record that the claim is baseless.      Prior to the debriefings, Wingo signed at least two

acknowledgments that he understood the minimum and maximum penalties for the offenses with

which he was charged. The plea agreement that he rejected — but which he now claims he would

have accepted had he been correctly advised of the possible penalties — included that information.

Wingo is not entitled to relief on this claim.

       It is undisputed that Wingo’s counsel was not physically present at the Kastigar debriefings

Wingo attended. Wingo claims that these sessions were a critical stage of the proceedings, and the

absence of his counsel at these sessions denied him his Sixth Amendment right to effective

assistance of counsel. This, he argues, was a per se violation of his Sixth Amendment rights. See

United States v. Cronic, 466 U.S. 648, 659 (1983). The district court was initially persuaded by this

argument, and in its November 2006 opinion, vacated the CCE conviction. However in reinstating

that conviction in August 2007, the court essentially presumed Strickland v. Washington’s first

prong, the deficient performance of counsel. Wingo, 2007 WL 2480731 at *3; see generally

Strickland v. Washington, 466 U.S. 668 (1984). Moving directly to the prejudice prong, the court

found none, concluding that the government had demonstrated that it had obtained the identity of

Michael Zajac from independent sources, Wingo, 2007 WL 2480731 at *4, and that Zajac was the

only witness whose testimony had played a significant role in the case against Wingo, id. at *3, n.

5. The court further concluded that the record did not support Wingo’s claim that the government

had used Wingo’s statements to persuade Zajac to testify against Wingo. Id. at *4. Because the




                                                 3
court had found in its 2006 opinion that these were Wingo’s only claims of prejudice that had any

substance, the court found that Wingo had failed to demonstrate prejudice.

       We will assume for purposes of this appeal that Wingo’s first debriefing — the session at

which Wingo signed the Kastigar letter — was a critical stage of the proceedings, such that the total

absence of counsel would require us to presume prejudice. See Cronic, 466 U.S. at 659. The

evidence, however, refutes any claim of total absence of counsel at that debriefing. The record

contains some evidence that Stephen Glass, Wingo’s attorney at the time of the intial debriefing, had

reviewed the Kastigar letter with Wingo prior to the debriefing. Wingo, 2006 WL 3446255 at *3

(recounting that Glass testified as to this being his usual practice and that AUSA Waterstreet

confirmed that this had been done). More importantly, the record demonstrates that during that

initial debriefing on February 13, 1992, Wingo spoke with Glass by telephone, and Glass advised

him to sign the cooperation agreement. Id. at *4; see Wright v. Van Patten, 128 S.Ct. 743, 746-747

(2008) (putting off a direct disposition of the issue of “the merits of telephone practice,” but holding

that the lower courts’ findings that counsel’s presence by telephone was not deficient performance

was not an unreasonable application of federal law).

       The facts of this case do not support Wingo’s Cronic claim. And once Wingo — with the

advice of counsel — had signed the Kastigar letter and agreed to cooperate with the government,

the debriefings ceased to be adversarial proceedings where Wingo’s rights were in danger of being

“irretrievably lost” if not safeguarded by the presence of counsel. See Van v. Jones 475 F.3d 292,

298 (6th Cir. 2007). Wingo must therefore demonstrate that his counsel’s performance was not only

deficient, but resulted in actual prejudice. We have carefully reviewed the record, and conclude that

for the reasons explained by the district court, Wingo cannot carry that burden.


                                                   4
                                                   II.

        Wingo also challenges, pro se, the district court’s denying him bond while his 28 U.S.C. §

2255 motion was pending. This is a claim without merit. The test for granting bond during the

pendency of a § 2255 was set forth in Aronson v. May, 85 S.Ct. 3 (1964), which we interpreted in

Dotson v. Clark, 900 F.2d 77 (6th Cir. 1990). It requires that (1) the § 2255 motion present

substantial questions (principal among them a showing that challenging the sentence in the district

court was inadequate or ineffective), and (2) there exists “some circumstance making this application

exceptional and deserving of special treatment in the interests of justice.” Aronson, 85 S.Ct. at 5;

Dotson, 900 F.2d at 79 (quoting Aronson).

        As we said in Dotson, “[t]here will be few occasions where a prisoner will meet this standard.

Moreover, it is doubtful that the district court or a circuit judge will issue the certificate of probable

cause for an appeal required for appeals by state habeas petitioners in Federal Rule of Appellate

Procedure 22(b) unless the claim reflects clear merit.” Id. Here, there was no certificate of

appealability issued on this ground. But even if there had been, our analysis of the claims raised in

Wingo’s § 2255 motion forecloses our finding that either the remedy in the sentencing court was

inadequate or that this case presents exceptional circumstances.

                                                   III.

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




                                                    5
        KAREN NELSON MOORE, Circuit Judge, dissenting. After his indictment on various

drug-related charges and without having entered into a plea agreement with the government, Karl

Wingo participated in several sessions during which he waived his Fifth Amendment privilege

against self-incrimination and debriefed the government on the details of the crimes with which he

had been charged. It is unclear how much Wingo had spoken with his counsel, Stephen Glass, up

to this point, but it appears that they met on only one occasion and spoke almost exclusively by

telephone, as Glass’s practice was based in Florida.1 Although I express no opinion on whether

Glass was “totally absent” from Wingo’s initial debriefing session, during which Wingo spoke with

Glass by telephone, it is undisputed that Glass was totally absent from the four subsequent debriefing

sessions. Because I believe that these debriefing sessions were a “critical stage” of the proceedings,

I would presume that Wingo was prejudiced by his counsel’s absence and therefore was deprived

of his Sixth Amendment right to the assistance of counsel pursuant to United States v. Cronic, 466

U.S. 648 (1984).

        Claims of ineffective assistance of counsel generally are reviewed under the well-established

test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires the petitioner

to show that the counsel’s performance was both deficient and prejudicial to the defense. “It is well

settled,” however, “that a complete absence of counsel at a critical stage of a criminal proceeding

is a per se Sixth Amendment violation warranting reversal of a conviction, a sentence, or both, as

applicable, without analysis for prejudice or harmless error.” Van v. Jones, 475 F.3d 292, 311-12

(6th Cir. 2007). In Cronic, decided the same day as Strickland, “the Supreme Court held that an



        1
         Glass, who was not a member of the Michigan state bar when he represented W ingo, was disbarred by the
Florida Supreme Court two years later.

                                                       6
appeals court must reverse a criminal defendant’s conviction ‘without any specific showing of

prejudice to defendant when counsel was either totally absent, or prevented from assisting the

accused during a critical stage of the proceeding.’” Mitchell v. Mason, 325 F.3d 732, 740 (6th Cir.

2003) (quoting Cronic, 466 U.S. at 659 n.25). Therefore, while the Strickland test “provides

guidance for resolving virtually all ineffective assistance of counsel claims, there are ‘a few

situations in which prejudice may be presumed,’” including the absence of counsel during a critical

stage of the proceedings. Id. (quoting Williams v. Taylor, 529 U.S. 362, 391 (2000)).

        The Supreme Court has not laid out “a comprehensive and final one-line definition of

‘critical stage.’” Van, 475 F.3d at 312. Most recently, the Court stated that a critical stage is “a step

of a criminal proceeding . . . that h[olds] significant consequences for the accused.” Bell v. Cone,

535 U.S. 685, 696 (2002). A critical stage is one at which “[a]vailable defenses may be []

irretrievably lost,” Hamilton v. Alabama, 368 U.S. 52, 53 (1961), and “where rights are preserved

or lost,” White v. Maryland, 373 U.S. 59, 60 (1963). The Court has emphasized that the

determination requires “an analysis ‘whether potential substantial prejudice to defendant’s rights

inhered in the . . . confrontation and the ability of counsel to help avoid that prejudice.’” Coleman

v. Alabama, 399 U.S. 1, 9 (1970) (alteration in original) (quoting United States v. Wade, 388 U.S.

218, 227 (1967)). We also should consider whether the stage is adversarial in nature so that “the

accused required aid in coping with legal problems or assistance in meeting his adversary.” United

States v. Ash, 413 U.S. 300, 313 (1973).

        A variety of post-indictment, pretrial proceedings have been found to be “critical stages.”

See, e.g., Michigan v. Jackson, 475 U.S. 625, 629-30 (1986) (noting that, after arraignment,

“government efforts to elicit information from the accused, including interrogation, represent


                                                   7
‘critical stages’ at which the Sixth Amendment applies”), overruled on other grounds, Montejo v.

Louisiana, --- U.S. ---, 129 S. Ct. 2079, 2085 (2009); King v. Bobby, 433 F.3d 483, 490 (6th Cir.

2006) (“Plea negotiations, guilty plea hearings, and sentencing hearings are all ‘critical stages’ at

which the right to counsel attaches.”). Because government debriefings may hold significant

consequences for the accused with respect to waiver of his or her Fifth Amendment right against

self-incrimination, negotiation of a plea agreement, and sentencing, I believe that post-indictment

debriefings are a critical stage for purposes of the Sixth Amendment.

       In Estelle v. Smith, the Supreme Court emphasized the importance of counsel when a

defendant considers waiving his or her Fifth Amendment right against self-incrimination: “Because

‘[a] layman may not be aware of the precise scope, the nuances, and the boundaries of his Fifth

Amendment privilege,’ the assertion of that right ‘often depends upon legal advi[c]e from someone

who is trained and skilled in the subject matter.’” 451 U.S. 471, 471 (1981) (first alteration in

original) (quoting Maness v. Meyers, 419 U.S. 449, 466 (1975)). The Court concluded that consent

to a psychiatric interview was a critical stage in pretrial proceedings such that the defendant’s Sixth

Amendment right to counsel was violated when the defendant was not given an opportunity to

consult with his counsel before participating in a psychiatric examination.             Although the

repercussions of a psychiatric examination may be different from those of debriefing sessions, both

involve the defendant’s decision to waive certain Fifth Amendment rights, and in both circumstances

“a defendant should not be forced to resolve such an important issue without ‘the guiding hand of

counsel.’” Id. (quoting Powell v. Alabama, 287 U.S. 45, 69 (1932)).

       Aside from the waiver of the Fifth Amendment right against self-incrimination, debriefings

hold the potential for prejudice to the accused which may be avoided with the assistance of counsel.


                                                  8
In United States v. Ming He, 94 F.3d 782 (2d Cir. 1996), the Second Circuit discussed at length the

important role of counsel at debriefings in considering whether a defendant was entitled to have

counsel present during debriefing sessions held after the defendant had, with the assistance of

counsel, pleaded guilty and signed a cooperation letter. Although the court did not reach the

underlying Sixth Amendment issue, the court used its supervisory powers to conclude “that

cooperating witnesses are entitled to have counsel present at debriefings, unless they explicitly waive

such assistance.” Id. at 793. Rejecting the government’s argument that “a debriefing session is a

minor event and that defense counsel would of necessity be limited to giving advice principally about

matters of fact,” the court discussed several ways in which counsel’s assistance may be crucial at a

debriefing session. Id. at 789. “First, a lawyer can explain the government’s questions while also

keeping her client calm,” preventing the defendant from “blurt[ing] out unthinking answers.” Id.

“Second, a lawyer can keep the client focused on the fact that while he is seeking the assistance and

protection of the government, that entity does not share the defendant’s interests even after the

execution of a cooperation agreement.” Id. at 790. Contrary to the government’s argument in this

case, the court noted that a debriefing is an adversarial proceeding, because “the defendant’s rights

have not been fully adjudicated.” Id. “Third, in this setting, a defense attorney might help resolve

potential disagreements between the government and the defendant in clarifying his answers to

ensure they are complete and accurate.” Id. Fourth, “defense counsel can serve as a potential

witness at sentencing to the fact that her client fully performed the promise he made to the

government.” Id. Finally, the court noted that the outcome of the debriefing sessions would impact

whether the government made a motion for a downward departure under § 5K1.1 of the United




                                                  9
States Sentencing Guidelines, “a motion that has a critical effect on the amount of time defendant

will serve in prison”:

       Most significantly, the refusal by the government to make such a motion is ordinarily
       unreviewable. The special nature of a § 5K1.1 motion demonstrates that the
       government debriefing interview is crucial to a cooperating witness. To send a
       defendant into this perilous setting without his attorney is, we think, inconsistent with
       the fair administration of justice.

Id.

       All of these reasons make clear that Wingo’s debriefing sessions were adversarial in nature

and also were stages at which aspects of Wingo’s Fifth Amendment right against self-incrimination

were “irretrievably lost.” Hamilton, 368 U.S. at 53. Moreover, the consequences that the debriefings

held for Wingo were in many respects more substantial than those faced by the defendant in Ming

He because, unlike Ming He, Wingo had not yet entered into a plea agreement when he debriefed.

Therefore, not only was his sentence dependent upon the debriefings, but the debriefings were crucial

to the plea negotiations. Cf. King, 433 F.3d at 490 (noting that plea negotiations are a critical stage

of criminal proceedings). Based on these debriefings, the government would determine the terms

of the plea agreement and whether the government would be willing to enter into a plea agreement

at all. The importance of the debriefings is exemplified by the fact that, after the debriefings broke

down, Wingo did not reach a plea deal with the government and the case proceeded to trial. The

mere fact that Wingo had signed the Kastigar letter does not mean that the government was no

longer his adversary, and the debriefings surely held significant consequences for Wingo.

       I recognize that, in practice, some defense counsel may not attend debriefing sessions

subsequent to the first session and that there may be benefits to the cooperation process if a

defendant is able to meet with the government without his counsel present. As at any other stage of


                                                  10
criminal proceedings, however, a defendant may affirmatively waive his or her right to have counsel

present during the debriefing sessions, as long as this waiver is made voluntarily, knowingly, and

intelligently. See Estelle, 451 U.S. at 471 n.16. In some cases, counsel may determine that the

debriefings would proceed more smoothly without counsel present, and in such cases counsel may

advise the defendant to waive his right to have counsel present at the debriefings. Here, there is no

indication that Wingo made any knowing and intelligent waiver of counsel. I therefore would

conclude that Wingo’s Sixth Amendment rights were violated by his counsel’s failure to attend the

vast majority of his debriefing sessions.

         Regarding Wingo’s separate appeal of the district court’s denial of bond pending appeal, I

would conclude that we have no jurisdiction over this appeal because no certificate of appealability

was issued in that appeal. Although denial of bond pending habeas review is appealable under the

collateral-order doctrine, Dotson v. Clark, 900 F.2d 77, 78 (6th Cir. 1990), we have held “that a

certificate of probable cause2 is a prerequisite to appealing the denial of a bail motion in a habeas

proceeding,” Lee v. Jabe, 989 F.2d 869, 871 (6th Cir. 1993). The district court specifically denied

a certificate of appealability on the issue of the denial of bond, and, in response to Wingo’s notice

of appeal of the denial of bond, this court refused to expand the certificate of appealability beyond

the one issue certified by the district court. Therefore, under Lee, I would conclude that we do not

have jurisdiction over Wingo’s appeal of the district court’s denial of bond.




         2
         The pre-AEDPA version of Rule 22 of the Federal Rules of Appellate Procedure referred to the
requirement for a “certificate of probable cause,” but the current rule uses the term “certificate of appealability.”
Fed. R. App. P. 22(b)(1).

                                                           11
