                  United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 18-2185
                         ___________________________

                              Rocky Thomas Mayfield,

                       lllllllllllllllllllllPetitioner - Appellant,

                                           v.

                             United States of America,

                       lllllllllllllllllllllRespondent - Appellee.
                                       ____________

                     Appeal from United States District Court
                    for the District of North Dakota - Bismarck
                                   ____________

                            Submitted: October 17, 2019
                               Filed: April 8, 2020
                                  ____________

Before COLLOTON, WOLLMAN, and KELLY, Circuit Judges.
                       ____________

COLLOTON, Circuit Judge.

       A jury convicted Rocky Thomas Mayfield of several charges involving
methamphetamine trafficking and unlawful possession of a firearm, and the district
court sentenced him to 240 months in prison. Mayfield later moved under 28 U.S.C.
§ 2255 to vacate the sentence on the ground that he received ineffective assistance of
counsel during plea negotiations before trial. The district court denied the motion
without a hearing, and Mayfield appeals. We conclude that the record does not
conclusively show that Mayfield’s claim is without merit, so we vacate the judgment
and remand for further proceedings.

                                         I.

       A grand jury charged Mayfield in April 2015 with one count of conspiracy to
distribute 500 grams or more of methamphetamine mixture, one count of possession
with intent to distribute 500 grams or more of methamphetamine mixture, one count
of possession with intent to distribute 50 grams or more of actual methamphetamine,
and one count of unlawful possession of a firearm by a convicted felon. The drug
charges initially carried a mandatory minimum sentence of 10 years’ imprisonment
and a maximum term of life. 21 U.S.C. § 841(b)(1)(A)(viii) (2012). The firearms
charge was punishable by a maximum term of 10 years’ imprisonment. 18 U.S.C.
§ 924(a)(2).

       The government then filed an information under 21 U.S.C. § 851, notifying
Mayfield that he was subject to enhanced punishment based on a felony conviction
in Arizona from 2002 for possession of drug paraphernalia. The prior conviction, if
established, would have increased the minimum penalty to 20 years’ imprisonment
for each of the drug charges. 21 U.S.C. § 841(b)(1)(A) (2012).

       In May 2015, Mayfield retained new counsel whose performance is the subject
of this appeal. In January 2016, with a motion to suppress evidence pending, the
government proposed to defense counsel that Mayfield withdraw his pending motion,
plead guilty, and cooperate with the government in an effort to reduce his sentence.
Mayfield rejected the overture.

      The district court then denied the motion to suppress, and the government
proposed new terms to Mayfield’s counsel. As memorialized in an e-mail of February

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10, 2016, the government offered that if Mayfield pleaded guilty to the drug
conspiracy charge and the firearms charge, the government would dismiss the other
two drug trafficking counts. The government also would “agree to recommend a
sentence at the low end of the sentencing guideline range found by the court at the
sentencing hearing or the statutory minimum mandatory imprisonment sentence,
whichever is higher.” The offer did not provide for a stipulated sentencing guideline
range and left the final guideline calculations for determination at sentencing. The
prosecutor first predicted an advisory sentencing range of 210 to 262 months under
the sentencing guidelines, but then explained his view that the statutory minimum
would adjust the range to 240 to 262 months. Then the prosecutor said that the
government might not move for a third level of reduction for acceptance of
responsibility under USSG § 3E1.1(b); in that case, the estimated advisory range
would have been 235 to 293 months, adjusted to 240 to 293 months by the asserted
statutory minimum. The government suggested that Mayfield’s advisory range would
be 292 to 365 months if he declined to accept responsibility and was convicted after
a trial.

      Mayfield declined the offer, proceeded to trial, and was convicted on all four
counts. The probation office calculated an advisory guideline range of 262 to 327
months’ imprisonment, with a statutory minimum penalty of 240 months.

       In his sentencing memorandum, Mayfield for the first time contested the
statutory minimum of 240 months. He argued that when he committed the Arizona
drug paraphernalia offense in 2002, the state law did not authorize imprisonment as
a punishment. Therefore, he explained, the crime could not be a prior “felony drug
offense” resulting in enhanced punishment under 21 U.S.C. § 841(b)(1)(A) (2012),
because it was not punishable by imprisonment for more than one year. See 21
U.S.C. § 802(44). Mayfield asserts that his sister, a non-lawyer who researched the
point, alerted him and his attorney to the issue.



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       At the sentencing hearing, the government acknowledged that the Arizona
conviction did not qualify as one for a felony drug offense, and withdrew the notice
of enhanced punishment under § 851. The district court then arrived at an advisory
guideline range of 235 to 293 months’ imprisonment, and sentenced Mayfield to 240
months on the three drug trafficking counts, to be served concurrently with a 120-
month sentence for the firearms count. During his allocution, Mayfield asserted that
he had “wanted to take a plea,” but had declined to do so because the government’s
offer was premised on the mistaken statutory minimum penalty of 240 months.

       Mayfield appealed his conviction, and this court affirmed the judgment. United
States v. Mayfield, 678 F. App’x 437 (8th Cir. 2017) (per curiam). Mayfield then
sought relief under § 2255, arguing among other things that his attorney was
ineffective for failing to challenge the § 851 enhancement or to ascertain that it was
inapplicable. The district court denied the motion without an evidentiary hearing, but
the court did not address whether counsel was ineffective in his advice to Mayfield
during plea negotiations. Instead, the court concluded that counsel was not
ineffective in declining to challenge the § 851 enhancement before trial because such
a challenge would have been premature. As to the plea negotiations, the court ruled
that “Mayfield’s contention that defense counsel did not attempt to negotiate a plea
agreement is contradicted by the record.”

                                          II.

       Under § 2255, judgment on the pleadings is warranted if “the motion and the
files and records of the case conclusively show that the prisoner is entitled to no
relief.” 28 U.S.C. § 2255(b). Where an evidentiary record is necessary to rule on the
prisoner’s claim, however, the district court must convene a hearing. Id. We review
the district court’s legal conclusions de novo and any findings of fact for clear error.
Allen v. United States, 854 F.3d 428, 432 (8th Cir. 2017).



                                          -4-
       To prevail on a claim of ineffective assistance of counsel, a movant must show
that counsel’s performance was deficient, and that he suffered prejudice as a result.
Strickland v. Washington, 466 U.S. 668, 687 (1984). On the first element, “we
consider counsel’s performance objectively and gauge whether it was reasonable
‘under prevailing professional norms’ and ‘considering all the circumstances.’”
Fields v. United States, 201 F.3d 1025, 1027 (8th Cir. 2000) (quoting Strickland, 466
U.S. at 688). There is a “strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance,” Strickland, 466 U.S. at 689, and
“strategic choices made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable.” Id. at 690.

       Mayfield argues that his attorney’s performance was constitutionally deficient
because counsel advised Mayfield to decline a plea offer based on a sentencing
enhancement that any reasonable counsel should have known was inapplicable. The
district court did not address this contention, but we believe that Mayfield fairly
raised it. Mayfield’s motion states: “My attorney did not know federal law so he
thought I qualified for the 851 enhancement. My attorney did not know federal law
and did not advise me in the proper way. . . . At my attorney’s advice I was told to
take it to trial because I had nothing to lose as I would not get anything less than 20
years.” R. Doc. 205, at 4. In response to the government’s opposition, Mayfield
further explained: “The government is saying that I claim that my attorney was
ineffective because he did not file a pretrial motion to have my 8:51 enhancement
dropped. This is not my claim. My attorney was ineffective because he did not know
I did not qualify for the 8:51.” R. Doc. 215, at 1. Mayfield renews this contention
on appeal.

      The Sixth Amendment right to effective assistance of counsel includes
representation during the plea bargaining process. Missouri v. Frye, 566 U.S. 134,
143-47 (2012). “[T]he negotiation of a plea bargain is a critical phase of litigation
for purposes of the Sixth Amendment right to effective assistance of counsel.”

                                         -5-
Padilla v. Kentucky, 559 U.S. 356, 373 (2010). “If a plea bargain has been offered,
a defendant has the right to effective assistance of counsel in considering whether to
accept it.” Lafler v. Cooper, 566 U.S. 156, 168 (2012). Effective assistance requires
the provision of reasonably informed advice on material issues. “An attorney’s
ignorance of a point of law that is fundamental to his case combined with his failure
to perform basic research on that point is a quintessential example of unreasonable
performance under Strickland.” Hinton v. Alabama, 571 U.S. 263, 274 (2014) (per
curiam). This court, for example, upheld a finding that counsel was not
professionally reasonable in advising a client to plead guilty based on a mistaken
understanding about parole, where “[m]inimal research would have alerted counsel
to the correct parole eligibility date.” Garmon v. Lockhart, 938 F.2d 120, 121 (8th
Cir. 1991).

       The record at this juncture does not conclusively refute Mayfield’s claim, and
it lends some support to his argument. At Mayfield’s sentencing hearing, defense
counsel implied that his advice during plea discussions had assumed a statutory
minimum punishment of twenty years, due to Mayfield’s prior conviction and the
government’s notice of enhanced punishment under § 851. Counsel explained that
“there was no reason for [Mayfield] to enter into a plea agreement because he was
looking at 20 years no matter what.”

      If that was counsel’s advice, then it was not professionally reasonable.
Rudimentary research would have revealed that the twenty-year minimum did not
apply, because the prior conviction noticed by the government did not qualify as a
conviction for a “felony drug offense” under federal law. The § 851 notice included
Mayfield’s Arizona criminal case number. The online docket for that case number
produces a judgment showing that Mayfield was prosecuted for possession of drug
paraphernalia under Arizona Revised Statutes § 13-3415 and sentenced under § 13-
901.01(A). The version of § 13-901.01(A) that applied when Mayfield committed the
offense prohibited incarceration: “The court shall suspend the imposition or

                                         -6-
execution of sentence and place such person on probation.” A.R.S. § 13-901.01(A)
(2001). Although the plain language of § 13-901.01(A) referred only to cases
involving possession of a “controlled substance,” the Supreme Court of Arizona held
in 2001 that it also encompassed possession of drug paraphernalia associated solely
with personal use. State v. Estrada, 34 P.3d 356, 361 (Ariz. 2001). A judgment
citing § 13-901.01(A) in a drug paraphernalia case should have prompted
professionally reasonable counsel to locate Estrada if necessary to resolve any
ambiguity. And because the federal definition of “felony drug offense” required an
offense punishable by more than one year, 21 U.S.C. § 802(44), Mayfield’s offense
in Arizona did not qualify. All of these sources were readily available public
documents that professionally reasonable counsel is expected to consider. See
Rompilla v. Beard, 545 U.S. 374, 384 (2005).

       The government suggests that Arizona law was “confusing” because the statute
was amended shortly after Mayfield’s offense to permit a penalty of imprisonment in
certain circumstances. See A.R.S. § 13-901.01(E) (2002). This is not a situation,
however, where the law was unsettled or debatable, in which case professionally
reasonable counsel is not expected to anticipate developments in the law or to raise
issues unsupported by existing precedent. E.g., Anderson v. United States, 762 F.3d
787, 794 (8th Cir. 2014); Brown v. United States, 311 F.3d 875, 878 (8th Cir. 2002).
That the statute was amended simply meant that counsel’s basic research had to
include tracing the history of the statute and matching the correct version to
Mayfield’s prior offense. That the prosecutor made the same mistake would not
demonstrate professional reasonableness.*




      *
       Mayfield also argues that counsel performed deficiently because he was
ignorant of the potential for a sentence reduction under 18 U.S.C. § 3553(e).
Mayfield did not raise this claim in the district court, and it is therefore waived.


                                        -7-
       If a developed record establishes that counsel’s performance was deficient,
then the district court should consider whether Mayfield suffered prejudice as a result
of counsel’s flawed advice. Where a movant asserts that counsel’s deficient
performance led the defendant to reject a favorable plea offer and proceed to trial,

      a defendant must show that but for the ineffective advice of counsel
      there is a reasonable probability that the plea offer would have been
      presented to the court (i.e., that the defendant would have accepted the
      plea and the prosecution would not have withdrawn it in light of
      intervening circumstances), that the court would have accepted its terms,
      and that the conviction or sentence, or both, under the offer’s terms
      would have been less severe than under the judgment and sentence that
      in fact were imposed.

Lafler, 566 U.S. at 164.

       The record is not developed on the question of prejudice. Mayfield advances
a post hoc assertion that he would have accepted a plea agreement on the terms
outlined in the prosecutor’s e-mail of February 2016 if he had known that the twenty-
year statutory minimum did not apply. But whether there is a reasonable probability
that he would have done so is a fact-dependent issue that requires consideration of
factors that would have affected Mayfield’s decisionmaking, and any
“contemporaneous evidence to substantiate [the] defendant’s expressed preferences.”
Lee v. United States, 137 S. Ct. 1958, 1967 (2017). In this case, for example, the
government’s offer projected an advisory guideline range of 210 to 262 months’
imprisonment with a three-level reduction for acceptance of responsibility, but a
range of 235 to 293 months’ imprisonment if the government elected not to move for
a third level under USSG § 3E1.1(b). There was uncertainty about the advisory
guideline range, and Mayfield would have made his decision in that context. (The
district court later calculated a base offense level of 32, two levels lower than the
government’s estimate of level 34 in the plea offer, after finding that the drug quantity


                                          -8-
of 4.9896 kilograms fell just below a threshold of 5 kilograms for level 34. See R.
Doc. 194, at 7, ¶ 17.).

        To resolve the issue of prejudice, therefore, the district court would have to
make findings about what likely would have transpired in February 2016 under a
counterfactual scenario in which defense counsel recognized that the twenty-year
statutory minimum did not apply and so advised Mayfield. If Mayfield demonstrates
a reasonable probability that he would have accepted the plea offer of February 10
with effective assistance of counsel, and that the ultimate disposition would have
been more favorable to him in that scenario, then the court has discretion “to require
the prosecution to reoffer the plea proposal,” and to fashion an appropriate sentence
if the plea agreement is accepted by the parties and the court. Lafler, 566 U.S. at 171.

                                   *       *       *

       For these reasons, the record does not conclusively show that Mayfield is
entitled to no relief under § 2255. We therefore vacate the district court’s order
denying the motion, and remand for further proceedings.
                       ______________________________




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