                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 05a0992n.06
                           Filed: December 20, 2005

                                           No. 04-5567

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


DELANNIE LAMONT MARTIN,                          )
                                                 )
       Petitioner-Appellant,                     )
                                                 )
v.                                               )    ON APPEAL FROM THE UNITED
                                                 )    STATES DISTRICT COURT FOR THE
UNITED STATES OF AMERICA,                        )    WESTERN DISTRICT OF KENTUCKY
                                                 )
       Respondent-Appellee.                      )




       Before: NELSON, DAUGHTREY and SUTTON, Circuit Judges.


       SUTTON, Circuit Judge. Delannie Lamont Martin challenges the district court’s denial of

his § 2255 motion to vacate his sentence. Because neither of Martin’s challenges to his sentence

warrants relief, we affirm.


                                                 I.


       In May 1999, police stopped Martin while he was driving in Bowling Green, Kentucky.

During the ensuing search of his car, the police found over 900 grams of crack cocaine, over 900

grams of powder cocaine, approximately $6,000 in cash, a .45 caliber pistol and a 12-gauge shotgun.

After Martin’s attempt to suppress this evidence failed, he pleaded guilty to possessing cocaine and

crack cocaine with intent to distribute, see 21 U.S.C. § 841(a)(1), and to carrying a firearm during
No. 04-5567
Martin v. United States

and in relation to a drug-trafficking crime, see 18 U.S.C. § 924(c). The district court sentenced him

to a 230-month prison term. While Martin chose not to file an appeal challenging his sentence, he

eventually filed this § 2255 motion, claiming that he had received ineffective assistance of counsel

and that the Rule 11 colloquy was defective.


        The district court initially granted Martin’s motion in part and allowed him to withdraw his

guilty plea to the § 924(c) charge, reasoning that the guilty plea colloquy had not adequately

informed Martin of the in-relation-to element of the § 924(c) charge. Both parties filed motions for

reconsideration, and the district court vacated its earlier decision and referred the matter to a

magistrate. After conducting an evidentiary hearing, the magistrate recommended denying the

§ 2255 motion. The district court followed the magistrate’s recommendation and denied Martin’s

motion in its entirety.


        This court granted Martin a certificate of appealability on two issues: (1) whether Martin’s

counsel provided ineffective assistance by failing to advise him of the elements of a § 924(c) charge;

and (2) whether the district court’s failure to discuss the in-relation-to element of the § 924(c) charge

during the plea colloquy entitles Martin to relief from his sentence. “The district court’s denial of

[Martin’s] § 2255 motion is reviewed de novo, but the lower court’s factual findings are reviewed

for clear error.” Nagi v. United States, 90 F.3d 130, 134 (6th Cir. 1996).




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Martin v. United States

                                                  II.


                                                  A.


         In challenging the effectiveness of his counsel, Martin correctly identifies the two questions

that we must ask and answer. Did the performance of his attorney fall “below an objective standard

of reasonableness”? Strickland v. Washington, 466 U.S. 668, 688 (1984). And, if so, did the

attorney’s performance prejudice Martin? Id. at 696; see also Hill v. Lockhart, 474 U.S. 52, 59

(1985) (stating that in the context of a guilty plea, the defendant must show that “there is a

reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty

and would have insisted on going to trial”); Griffin v. United States, 330 F.3d 733, 737 (6th Cir.

2003).


         Martin argues that his case should be remanded for an additional evidentiary hearing in

which he can testify about pre-guilty-plea conversations between him and his defense attorney

concerning the elements of a § 924(c) charge. At the evidentiary hearing that has already been held,

however, Martin testified about the conversations he had with his defense attorney regarding the

charge, see JA 406–27, and in that testimony Martin presented his side of the story, JA 410 (“We

never went through that about no elements of the 924(c). He [the attorney] just said simple

possession was a 924(c).”). In addition, his defense attorney has offered a sworn affidavit

explaining his side of the story, JA 63 (“The elements of the offense including the gun charge were

further discussed in detail.”), and he testified at the hearing to the same effect, JA 373–74 (stating



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Martin v. United States

that he had “a specific recollection of” a conversation in which he “discussed in detail” the

“elements of the offense, including the gun charge” with Martin), JA 397 (replying “absolutely”

when questioned if he had discussed the in-relation-to element of the gun charge with Martin).

Based on this evidence, the district court, consistent with the magistrate’s recommendation, found

that Martin’s attorney informed him about the in-relation-to element of a § 924(c) charge. On

appeal, Martin has not pointed to any evidence indicating that the district court’s decision to credit

his attorney’s statements amounts to clear error or that a second evidentiary hearing would make any

difference in the outcome of that determination.


                                                 B.


       Martin also complains that the district court’s “failure to discuss the ‘in relation to’ element

of the section 924 (c) charge was inconsistent with the requirements of Federal Rule of Criminal

Procedure 11.” Martin Br. at 17. Because he did not raise this claim on direct appeal, it is

procedurally defaulted and we may not entertain the claim unless Martin can show cause for the

default and prejudice stemming from it or can show that he is actually innocent of the crime.

Bousley v. United States, 523 U.S. 614, 621–22 (1998); Peveler v. United States, 269 F.3d 693, 698

(6th Cir. 2001).


       Martin does not make any claim of actual innocence. And the only conceivable source of

the default is ineffective assistance of counsel. See, e.g., Henderson v. Collins, 262 F.3d 615, 636

(6th Cir. 2001) (recognizing that ineffective assistance of counsel may constitute cause for a



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Martin v. United States

procedural default). But because his ineffective-assistance claim lacks merit, as shown, Martin

cannot establish cause for his default.


       Martin persists that United States v. Carlos Dominguez Benitez, 542 U.S. 74 (2004), requires

evaluation of his Rule 11 claim under a plain-error standard rather than a cause-and-prejudice

standard, see id. at 76 (stating that “a defendant is obliged to show a reasonable probability that, but

for the [Rule 11] error, he would not have entered the [guilty] plea”). The flaw in this argument,

however, is that Benitez dealt with the standard of review applicable to direct review of a “claim of

Rule 11 error [that] was not preserved by a timely objection” and to which “the plain-error standard

of Rule 52(b) applies.” Id. Benitez did not address the standard of review applicable to a

procedurally defaulted Rule 11 claim raised in a § 2255 motion. Both before and after Benitez, we

have required claimants to demonstrate actual innocence or both cause and prejudice when raising

procedurally defaulted claims in a § 2255 motion. See, e.g., Peveler, 269 F.3d at 698 (“A

procedurally defaulted claim, absent a showing of cause and prejudice or actual innocence, cannot

give rise to relief under § 2255.”); Swain v. United States, No. 04-1645, 2005 WL 3065969, at *3

(6th Cir. Nov. 15, 2005) (requiring cause and prejudice in the context of a procedurally defaulted

claim asserting that the defendant’s plea was not voluntary). Martin has offered no good reason for

declining to adhere to this requirement here.


                                                 III.


       For these reasons, we affirm.



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