                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 06a0765n.06
                              Filed: October 16, 2006

                                            No. 05-3845

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT


Julio J. Valdez,                                  )
                                                  )
       Petitioner-Appellant,                      )
                                                  )
v.                                                )    ON APPEAL FROM THE UNITED
                                                  )    STATES DISTRICT COURT FOR THE
United States of America,                         )    NORTHERN DISTRICT OF OHIO
                                                  )
       Respondent-Appellee.                       )




       Before: GUY, GILMAN, and ROGERS, Circuit Judges
       ROGERS, Circuit Judge. Petitioner-Appellant Julio Valdez appeals the district court’s

dismissal of his 28 U.S.C. § 2255 petition. Valdez pled guilty in August 2001 to one count of

conspiring “to distribute and possess with intent to distribute cocaine and cocaine base.” J.A. 132

(Indictment). The district court imposed a sentence of 192 months. Valdez appealed his conviction

to this court, arguing, among other things, that he received ineffective assistance of counsel. This

court affirmed the conviction, but it declined to reach the merits of Valdez’s ineffective-assistance-

of-counsel claim on direct appeal. United States v. Valdez, 362 F.3d 903, 913-14 (6th Cir. 2004).

In this collateral attack on his conviction, Valdez raises three ineffective-assistance-of-counsel

arguments, including the claim made on direct appeal that he received ineffective assistance of

counsel because defense counsel did not file a timely motion to withdraw Valdez’s plea. The district

court held that this court on direct appeal “disposed of” Valdez’s ineffective-assistance-of-counsel
No. 05-3845
Valdez v. United States

claim. Valdez v. United States, No. 3:05 CV 7132, 2005 WL 1398542, at *1 (N.D. Ohio June 10,

2005). This court subsequently issued a certificate of appealability as to whether Valdez received

ineffective assistance of counsel.


       We vacate and remand the order of the district court denying Valdez’s motion to vacate his

sentence. The district court’s rationale for dismissing the petition was incorrect, and the district

court should decide Valdez’s ineffective-assistance-of-counsel claims in the first instance.


       On September 5, 2000, a grand jury indicted Julio Valdez on one count of conspiracy to

distribute and possess with intent to distribute cocaine, cocaine base, and marijuana, in violation of

21 U.S.C. §§ 841(a)(1) & 846; and two counts of knowingly and intentionally possessing with intent

to distribute cocaine in violation of 21 U.S.C. § 841(a)(1). Valdez pled guilty to the conspiracy

charge and the district court sentenced him to imprisonment for 192 months.1


       On direct appeal, this court rejected two of Valdez’s arguments and refused to consider the

third. First, this court rejected Valdez’s argument that his guilty plea was not made knowingly and

voluntarily. Valdez, 362 F.3d at 908-12. Second, this court held that the district court did not abuse

its discretion in denying Valdez permission to withdraw his guilty plea. Id. at 912-13.2 Finally, this


       1
        We previously described, in more detail, the facts surrounding Valdez’s plea agreement in
Valdez, 362 F.3d at 905-08.
       2
        The district court gave three reasons for denying Valdez permission to withdraw his plea:
(1) Valdez waited 75 days to file a motion to withdraw; (2) the circumstances surrounding Valdez’s
plea suggested that he understood the indictment and discussed it with his attorney; and (3) the
Government might have been prejudiced because witnesses’ recollections might have become stale

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Valdez v. United States

court “decline[d] to entertain the merits of Valdez’s claim of ineffective assistance of counsel.” Id.

at 914. Therefore, this court affirmed Valdez’ss sentence.


        Valdez, acting pro se, then brought a petition under 28 U.S.C. § 2255 with three claims: (1)

he received ineffective assistance of counsel; (2) his sentence violated Blakely v. Washington, 542

U.S. 296 (2004), and United States v. Booker, 543 U.S. 220 (2005); and (3) his sentence violated

Shepard v. United States, 544 U.S. 13 (2005). Valdez, 2005 WL 1398542, at *1.3 The district court

held that this court had “disposed of” Valdez’s ineffective-assistance-of-counsel claim on direct

appeal. Id. The district court also rejected Valdez’s other challenges. Id.


        Valdez filed a notice of appeal in this court, and this court construed that notice as an

application for a certificate of appealability. This court granted a certificate as to one issue: whether

Valdez received ineffective assistance of counsel. The order explicitly noted that “[t]his court did

not dispose of this claim on the merits but reserved ruling on the issue.” J.A. 118 (Order). This

court appointed counsel for Valdez and permitted him to proceed in forma pauperis.


and because the Government would need to expend time and money trying the case. Valdez, 362
F.3d at 912-13. This court held that although there was no factual basis for finding that the
Government suffered prejudice, the district court’s decision to deny Valdez permission to withdraw
was not an abuse of discretion. Id. at 913. This court held that the 75-day delay in filing the motion
was, by itself, sufficient reason to deny Valdez permission. Id. This court also held that the
circumstances surrounding Valdez’s plea revealed that Valdez assented three times to the quantity
of drugs that he allegedly possessed. Id.
        3
          Although the district court addressed the merits of Valdez’s Shepard and Booker claims, the
district court also correctly noted that Valdez waived any collateral attack on his sentence. Valdez,
2005 WL 1398542, at *1. The Government does not argue that Valdez waived his right to bring
ineffective-assistance-of-counsel claims.

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Valdez v. United States

       The district court appears to have erred in deciding that this court already disposed of

Valdez’s ineffective-assistance-of-counsel claims on direct appeal. A remand is therefore warranted

so that the district court can decide the claims and whether Valdez is entitled to an evidentiary

hearing on the claims. This court did not dispose of Valdez’s claims for ineffective assistance of

counsel; instead, it declined to hear those claims on direct appeal. See Valdez, 362 F.3d at 913-14.


       The puzzling nature of the district court’s statement that this court had disposed of the

ineffective-assistance-of-counsel claims may suggest that what the district court really meant was

that this court had effectively, albeit implicitly, decided those claims by holding that Valdez’s guilty

plea was knowing and voluntary. Even under such a reading of the district court’s opinion, however,

the district court’s judgment cannot be upheld. Valdez argues that his counsel was constitutionally

ineffective for (1) waiting 75 days to file a motion to withdraw Valdez’s guilty plea; (2) advising

Valdez to plead guilty without having first conducted a reasonable investigation into Valdez’s

criminal history; and (3) failing to ensure that Valdez made an informed decision when waiving his

right to a trial.4 Our prior decision did not foreclose the possibility that Valdez might prevail on one

of these arguments. First, when deciding that Valdez’s plea was knowing and voluntary, we

considered only whether Valdez knew the elements of the crime to which he pled guilty, including

the drug quantity. Valdez, 362 F.3d at 910-12. Valdez no longer argues that his counsel was


        4
        To succeed on his ineffective-assistance-of-counsel claims, Valdez must show that
“counsel’s representation ‘fell below an objective standard of reasonableness,’” McFarland v.
Yukins, 356 F.3d 688, 709-10 (6th Cir. 2004) (quoting Strickland v. Washington, 466 U.S. 668, 688
(1984)), and that “there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).

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No. 05-3845
Valdez v. United States

constitutionally ineffective for failing to inform him about the amount of drugs to which he pled

guilty, but instead he argues that his counsel was constitutionally ineffective for waiting too long to

withdraw the guilty plea, failing to investigate Valdez’s criminal history, and failing to inform

Valdez of his likely sentencing range.5 Second, whether a plea was knowing and voluntary for Rule

11 purposes and whether counsel was constitutionally ineffective for failing to advise a defendant

of the consequences of the plea (such that the defendant would not have decided to plead guilty) are

different inquiries. See Hill, 474 U.S. at 56 (distinguishing between information the Government

must provide to a defendant so that a guilty plea is voluntary for Rule 11 purposes and erroneous

information that defendant’s attorney might provide to the defendant that would make a guilty plea

involuntary because of ineffective assistance of counsel). We did not previously decide whether

Valdez’s plea was involuntary because of counsel’s purported deficiencies.6 Finally, reading our

earlier opinion as implicitly denying Valdez’s ineffective-assistance-of-counsel claim would be in

substantial tension with our explicit deferral of adjudication of that claim.


       Although the Government asks that we now deny Valdez’s claims on the merits, a remand



       5
         Although Valdez, in his pro se Motion to Vacate, argues that his counsel was ineffective for
failing to inform him of the difference between grams and kilograms of cocaine (the argument
Valdez initially made on direct appeal for why his plea was not voluntary), Valdez’s Motion also
explicitly refers to his attorney’s delay in filing the motion to withdraw and arguably refers to the
fact that his attorney did not inform him about the application of the Sentencing Guidelines.
       6
        For example, we decided that the district court properly denied Valdez’s motion to withdraw
his plea because Valdez’s attorney waited 75 days to file the motion. Valdez, 362 F.3d at 913.
Although we held that Valdez’s plea was knowing and voluntary, we did not decide whether his
attorney’s delay constituted ineffective assistance of counsel or whether the delay prejudiced Valdez.

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No. 05-3845
Valdez v. United States

in this case is more appropriate because it is consistent with the policy reasons why this court

ordinarily does not address ineffective-assistance-of-counsel claims on direct appeal. First, facts

needed to prove such claims are “more appropriately developed at the district court level” during a

post-conviction proceeding. See, e.g., Valdez, 362 F.3d at 913. Here, the district court did not make

any factual findings related to Valdez’s claims because the district court incorrectly ruled that this

court had already decided such claims. Second, the Supreme Court has noted that a benefit of

deciding ineffective-assistance-of-counsel claims in a collateral proceeding is that, because often a

§ 2255 motion will be decided by the district judge who presided at trial, “[t]he judge, having

observed the earlier trial, should have an advantageous perspective for determining the effectiveness

of counsel’s conduct and whether any deficiencies were prejudicial.” Massaro v. United States, 538

U.S. 500, 506 (2003). Here, the district judge who ruled on Valdez’s § 2255 motion was also the

presiding judge at Valdez’s trial, and thus is in a much better position than this court to decide

whether Valdez’s counsel’s representation was deficient, whether Valdez was prejudiced by any such

deficiency, and whether Valdez should be granted an evidentiary hearing on his claims. See also

Blanton v. United States, 94 F.3d 227, 235 (6th Cir. 1996) (“[W]hen the trial judge also hears the

collateral proceedings . . . , that judge may rely on his recollections of the trial in ruling on the

collateral attack.”).


        Finally, a remand avoids the unusual procedural posture whereby we would have to decide

whether to grant an evidentiary hearing, instead of reviewing the district court’s decision for an abuse

of discretion. If the district court, after considering the case anew, denies Valdez an evidentiary


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No. 05-3845
Valdez v. United States

hearing, we would then review that decision under the typical abuse-of-discretion standard.


       Accordingly, we VACATE and REMAND the order of the district court so that the district

court can consider Valdez’s ineffective-assistance-of-counsel claims in the first instance.




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No. 05-3845
Valdez v. United States

       RALPH B. GUY, JR., dissenting.              I respectfully dissent. Defendant appeals from the

denial of his § 2255 motion to vacate his sentence based upon a claim of ineffective assistance of

counsel.7 Defendant had entered a Rule 11 guilty plea to an indictment charging a large and

long-running drug conspiracy. He pleaded guilty to the conspiracy charge in exchange for having

two other substantive drug charges dismissed. The plea agreement included a stipulation that the

drug quantity involved was at least 50 but less than 150 kilograms of cocaine. Some 75 days

after entering his guilty plea, Valdez moved to withdraw the plea based upon a claim that he

thought he was pleading to between 50 and 150 grams of cocaine. This motion was denied.


       At sentencing, Valdez was found to be in criminal history category IV and have an

offense level of 33 which resulted in a sentencing range of 188 to 235 months. The court

imposed a 192-month sentence after allowing a three-point reduction for acceptance of

responsibility and reducing the presentence-report-recommended criminal history category from

VI to IV.


       Despite the fact that Valdez waived his right to appeal in his plea agreement, he

nonetheless filed a direct appeal claiming that his guilty plea was not knowing and voluntary, that

it was error to deny his motion to withdraw his plea, and that he was denied effective assistance

of counsel. We affirmed the conviction, rejecting defendant’s first two claims of error, but

consistent with Sixth Circuit practice, no ruling was made on the ineffective assistance of



       7
           Other claims raised by defendant were deemed waived and are not before us.

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No. 05-3845
Valdez v. United States

counsel claim. Defendant then filed this § 2255 motion claiming that his counsel was ineffective

in the following particulars: (1) failing to file the motion to withdraw the guilty plea until 75

days after the plea; (2) failing to fully investigate Valdez’s criminal history before advising a

guilty plea; and (3) failing to ensure that Valdez understood the potential sentence to which his

plea exposed him.


                                                  I.


A.      The Late Filing of the Motion to Withdraw the Guilty Plea


       First, since there was no evidentiary hearing in the district court, we have only the

defendant’s assertions that he had asked his attorney to file the motion shortly after the plea was

entered. Assuming the facts are as defendant claims, however, he was still not entitled to

withdraw his plea. Although the district court (and the Sixth Circuit on appeal) did reference the

unexcused late filing, both courts also held that there was no merit to the claim since Valdez was

repeatedly told the drug quantities involved; the quantities were stated in the plea agreement; his

plea agreement was found to be voluntary and knowing; and, finally, it is absurd to think that a

drug dealer would not know the difference between kilograms and grams. Thus, even if the

attorney’s performance was below standards in filing the motion late, defendant can show no

prejudice.


       Finally, defendant was informed and knew that he had agreed he could not withdraw his

plea if he was dissatisfied with the presentence report and the recommended sentence.

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B.      The Failure to Investigate Defendant’s Criminal History


        Again we have to assume for the purposes of the appeal that there was such a failure,

although there is no record support for this assumption. In fact, the record is to the contrary.

Eleven objections were filed to the presentence report and all were addressed. In addition, at

sentencing the trial judge granted defendant’s motion based upon an alleged overstatement of his

criminal history, and reduced his criminal history category two levels, from VI to IV, resulting in

a reduction of his guideline range from 235-293 months to 188-235 months. Valdez was

sentenced to 192 months, the lower end of the guideline range.


        The defendant is saying, in essence, that if he knew that he was going to get a sentence as

long as the one he received, he would not have pleaded guilty. This argument is not supported by

the record. Defendant was repeatedly told that until the presentence report was completed, there

were no guarantees as to sentence. Also, his plea agreement was silent as to length of sentence.

At his plea hearing the government attorney stated:


        We have not set forth in the agreement the actual guideline range due to the fact
        we are not exactly sure of what the criminal history category would be, so at this
        point, I would indicate that it would be, by our contemplation, a level 33, and I
        guess we can assume a category one until further notice. I know Mr. Rion’s had
        some discussion with his client regarding his prior criminal history. We have
        simply chosen not to make that part of the agreement and therefore have not
        referenced a specific guideline range.


Shortly thereafter, the trial judge stated:



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Valdez v. United States

       You should understand, gentlemen, that the Court cannot now determine with
       certainty the level of the guideline range into which you will fall. That will not be
       able to be determined until the time of sentencing, but you should also understand
       that if I accept your plea of guilty today, you have no right under the plea
       agreement that you have signed and acknowledged you are willing to live by to
       withdraw your plea. Do you understand that?


Finally, given the greater drug quantity attributed to the conspiracy charge, the potential guilty

verdicts on the two dismissed counts, the overwhelming evidence that convinced 33 other

defendants to plead guilty, the significant sentence imposed on the sole defendant who did go to

trial on Count 1, and the fact that defendant would have lost his acceptance of responsibility

reduction, it was not ineffective assistance for Valdez’s attorney to advise him to take the plea

agreement.


       Thus, as with defendant’s first claim, even if we assume counsel should have made a

more complete investigation of his client’s past history, defendant cannot show any prejudice.


C.     Failure to Ensure that Defendant Knew the Potential Sentence He Might Receive


       This third issue is really little different than the second in that defendant has to be saying,

“I wouldn’t have pleaded guilty if I knew I might receive a 192-month sentence.” Since

defendant was told over and over again that he could not be told his precise sentence at the time

of his plea and he agreed in his plea that he would accept whatever the sentence was, there is

simply nothing to this claim. His attorney never predicted any precise sentence and even if he

had, what went on in open court would trump such a prediction.


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Valdez v. United States

                                                II.


       The court in granting a remand does so primarily on the basis of one statement, taken out

of context, which appears in the court’s order denying relief to the defendant: “The ineffective

assistance of counsel claim has already been disposed of by the Sixth Circuit in his direct

appeal.” Based upon this statement the majority concludes:


              The district court appears to have erred in deciding that this court had
       already disposed of Valdez’[s] ineffective-assistance-of-counsel claims on direct
       appeal. A remand is therefore warranted so that the district court can decide the
       claims and whether Valdez is entitled to an evidentiary hearing on the claims.


       The majority does not mention two other significant statements made by the district judge

in the same short order. Two paragraphs earlier and on the same page, the district judge said:

“On direct appeal the Sixth Circuit affirmed the conviction and sentence and held . . . his

ineffective assistance of counsel claim would not be considered on direct appeal.”


       Admittedly, this is in apparent conflict with the statement made shortly thereafter. The

conflict is easily resolvable, however, when two other statements made by the court in the order

are considered. First the court states in the first paragraph: “For the reasons extremely well set

out in the Government’s nineteen (19) page response in opposition to Petitioner’s motion, his

motion will be denied.” In a similar vein the order concludes with this sentence: “For the

reasons herein above stated and those well set forth in the Government’s brief in opposition, the

petitioner’s [motion] is denied.”


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No. 05-3845
Valdez v. United States

       The majority thus makes no mention of the principal rationale for the district court’s

ruling. Although we might not commend the trial judge for taking the shortcut he did rather than

setting forth just what arguments the government made that he was adopting, that is no reason to

ignore those arguments.


       The government carefully and completely set forth all of the reasons why the defendant

was not entitled to relief on his claim of ineffective assistance of counsel. I have merely

recapitulated those arguments. Like the district judge, I find the government’s arguments

completely resolve the issues raised by the petitioner, and I would affirm.




                                               - 13 -
