                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 13-1187
                         ___________________________

                                Lino Terrazas Ramirez

                        lllllllllllllllllllllPetitioner - Appellant

                                            v.

                              United States of America

                      lllllllllllllllllllllRespondent - Appellee
                                      ____________

                    Appeal from United States District Court
                 for the Southern District of Iowa - Des Moines
                                 ____________

                           Submitted: December 19, 2013
                               Filed: May 2, 2014
                                  ____________

Before MURPHY, BYE, and SMITH, Circuit Judges.
                           ____________

SMITH, Circuit Judge.

       In May 2009, Lino Ramirez pleaded guilty to one count of conspiracy to
distribute at least 500 grams of a mixture or substance containing methamphetamine
and at least 50 grams of actual methamphetamine, in violation of 21 U.S.C.
§§ 841(b)(1)(A) and 846. Ramirez was sentenced to 240 months' imprisonment
followed by ten years of supervised release.
       Ramirez filed a 28 U.S.C. § 2255 petition to vacate, set aside, or correct his
sentence in August 2012. The district court1 denied the petition. On appeal, Ramirez
asserts that (1) his counsel was ineffective for failing to advise him that the
government had inquired if Ramirez might cooperate against others, (2) his counsel
was ineffective for failing to ask the district court to undertake the requisite 21 U.S.C.
§ 851(b) colloquy, (3) his counsel was ineffective for failing to withdraw Ramirez's
guilty plea as Ramirez requested, and (4) an intervening change of law prevents
enhancement of Ramirez's sentence for a prior felony. We affirm.

                                     I. Background
       In November 2008, a federal grand jury indicted Ramirez on five counts of
drug-related charges, including conspiracy to distribute drugs and drug distribution,
in violation of 21 U.S.C. §§ 846, 841(a)(1), 841(b)(1)(A), 841(b)(1)(B), 841(b)(1)(C),
and 18 U.S.C. § 2. The government indicted other members of this conspiracy as well.
In May 2009, Ramirez pleaded guilty to one count of conspiracy to distribute at least
500 grams of a mixture or substance containing methamphetamine and at least 50
grams of actual methamphetamine, in violation of 21 U.S.C. §§ 841(b)(1)(A) and 846.
The district court sentenced Ramirez to 240 months' imprisonment followed by ten
years of supervised release. We affirmed this sentence on direct appeal. See United
States v. Ramirez, 397 F. App'x 283 (8th Cir. 2010) (unpublished).

       In August 2012, Ramirez filed a 28 U.S.C. § 2255 petition to vacate, set aside,
or correct his sentence. His petition asserted four claims: (1) ineffective assistance of
counsel based on counsel's "fail[ure] to inform him of the government's interest in a
cooperation agreement," (2) ineffective assistance of counsel based on counsel's
failure "to request the court to read [the] necessary sentence colloquy as required by
§ 851(b) before imposing [an] enhanced sentence," (3) ineffective assistance of


      1
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.

                                           -2-
counsel based on counsel's "fail[ure] to file [Ramirez's] motion to withdraw his guilty
plea" contrary to Ramirez's wishes, and (4) the occurrence of an intervening change
of law that rendered an enhancement to Ramirez's sentence for a prior felony
inapplicable.

       The government moved to dismiss Ramirez's claims because Ramirez did not
file the petition within the one-year limitations period of 28 U.S.C. § 2255(f).
Ramirez argued that the claims were timely because of equitable tolling. The district
court determined that claims two, three, and four were untimely and dismissed them,
finding insufficient grounds for equitable tolling. The district court determined that
Ramirez timely brought claim one because the claim "was unknown to Ramirez until
he received his file from his appellate attorney." Apparently, Ramirez's attorney
withheld Ramirez's case file despite Ramirez's numerous requests to attain it. The
district court found that Ramirez could not have learned about the government's
interest in seeking a plea deal until after he received his case file several months after
we affirmed his sentence.

       Although Ramirez timely brought claim one, the district court rejected it
because Ramirez failed to demonstrate that the lack of communication prejudiced him
in a constitutionally recognizable fashion. The district court emphasized that "there
was never a plea offer for counsel to convey to Ramirez." Because of the lack of a
concrete plea offer, Ramirez failed "to show that the end result would have been
different." Furthermore, Ramirez never "expressed a willingness to cooperate with
the government or that he possessed information that would have been beneficial to
the government." The court concluded that "[t]he mere possibility of obtaining more
advantageous plea agreement terms is not sufficient to satisfy the prejudice required
by Strickland."2



      2
          Strickland v. Washington, 466 U.S. 668 (1984).

                                           -3-
       The district court denied a certificate of appealability as to each claim because
it found that Ramirez's claims were "untimely and/or without merit." On June 19,
2013, we granted a certificate of appealability as to claim one only.

                                     II. Discussion
       Ramirez argues on appeal that (1) his counsel was ineffective for failing to
advise him that the government had inquired if Ramirez might cooperate against
others, (2) his counsel was ineffective for failing to ask the district court to undertake
the requisite 21 U.S.C. § 851(b) colloquy, (3) his counsel was ineffective for failing
to withdraw Ramirez's guilty plea as Ramirez requested, and (4) an intervening
change of law prevents enhancement of Ramirez's sentence for a prior felony.

                 A. Government's Interest in Ramirez's Cooperation
       Ramirez argues that the district court erred by determining that his counsel was
not ineffective for "failing to advise him that the [government] had expressed an
interest as to whether Ramirez was willing to cooperate against other individuals."
More specifically, Ramirez avers that "[p]rejudice resulted because Ramirez was
deprived of a real choice between cooperation and silence." The government counters
by arguing that it never extended Ramirez a formal plea offer. Furthermore, Ramirez
never demonstrated that he was willing to cooperate or that he possessed helpful
information.

      Ramirez cites the following letter from the government to his trial counsel as
the basis of his claim:

      Dear [Trial Counsel]:

      This letter is [in] response to our phone conversation today, where you
      indicated that your client may be willing to provide information to the
      government which may be of assistance in a criminal investigation
      pending in the Southern District of Iowa.

                                           -4-
      I would like the opportunity to access [sic] the value, extent, and
      truthfulness of your client's information about potential criminal activity
      before a plea agreement would be considered or discussed. While your
      client may hope to receive some benefit by cooperating with the
      government, your client should understand that the government makes
      no promises or assurances that your client will receive any benefit at
      all.

      Enclosed with this letter is a proffer letter for you to review with your
      client. If your client would like to proffer please have him review and
      sign the letter and return it to my office no later th[a]n March 6, 2009.
      Your client's cooperation is dependant upon his timeliness. If you have
      any questions feel free to contact me. I look forward to hearing from you
      soon.

(Emphases added.) The government sent Ramirez's counsel a second letter two
months later that contained a non-cooperation agreement because "[t]o date, I have
not received any indic[a]tion from you that your client is interested in cooperating."

       A claim for ineffective assistance of counsel requires defendants to show that
their counsels' "performance was deficient and that it prejudiced [their] defense."
Chambers v. Armontrout, 907 F.2d 825, 828 (8th Cir. 1990) (en banc) (citing
Strickland, 466 U.S. at 687). To show deficient performance, the defendant must
demonstrate "that counsel's representation fell below an objective standard of
reasonableness." Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) (quotations and
citations omitted). "[A] strong presumption [exists] that counsel's conduct falls within
the wide range of reasonable professional assistance." United States v. Rice, 449 F.3d
887, 897 (8th Cir. 2006) (quotation and citation omitted).

      A defendant can establish prejudice by showing 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


                                          -5-
undermine confidence in the outcome." Strickland, 466 U.S. at 694. "Failure to
establish either Strickland prong is fatal to an ineffective-assistance claim."
Worthington v. Roper, 631 F.3d 487, 498 (8th Cir. 2011) (citation omitted).
Therefore, "[w]e need not inquire into the effectiveness of counsel . . . if we
determine that no prejudice resulted from counsel's alleged deficiencies." Gianakos
v. United States, 560 F.3d 817, 821 (8th Cir. 2009) (quotation and citations omitted).

       In Lafler, the Supreme Court recognized that defendants have a Sixth
Amendment right to counsel during the plea-bargaining process. 132 S. Ct. at 1384.
The Lafler court also noted that "'the two-part Strickland v. Washington test applies
to challenges to guilty pleas based on ineffective assistance of counsel.'" Id. (quoting
Hill v. Lockhart, 474 U.S. 52, 58 (1985)).

       In a companion case to Lafler, the Court addressed a situation that arose "in the
context of claimed ineffective assistance that led to the lapse of a prosecution offer
of a plea bargain, a proposal that offered terms more lenient than the terms of the
guilty plea entered later." Missouri v. Frye, 132 S. Ct. 1399, 1404 (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. at 1408 (emphasis added). The Court further
acknowledged that the offer in Frye "was a formal one with a fixed expiration date."
Id.

       In Ramirez's case, the district court distinguished Frye by noting that the
government never extended Ramirez a formal plea offer. In fact, the government
stated in its letter:

      I would like the opportunity to access [sic] the value, extent, and
      truthfulness of your client's information about potential criminal activity
      before a plea agreement would be considered or discussed. While your


                                          -6-
      client may hope to receive some benefit by cooperating with the
      government, your client should understand that the government makes
      no promises or assurances that your client will receive any benefit at all.

The district court correctly concluded that the government never extended Ramirez
a formal plea offer because the government merely expressed an interest in
negotiating. The terms of the government's interest explicitly disclaimed any promises
or assurances to Ramirez.

      Under Frye, Ramirez must

      demonstrate a reasonable probability [that he] would have accepted the
      earlier plea offer had [he] been afforded effective assistance of counsel.
      [Ramirez] must also demonstrate a reasonable probability the plea would
      have been entered without the prosecution canceling it or the trial court
      refusing to accept it . . . . To establish prejudice in this instance, it is
      necessary to show a reasonable probability that the end result of the
      criminal process would have been more favorable by reason of a plea to
      a lesser charge or a sentence of less prison time.

Id. at 1409. In short, to demonstrate prejudice, Ramirez must show a reasonable
probability that the plea would have been entered without the prosecution canceling
it. See id. at 1411 ("If . . . the prosecutor could have canceled the plea agreement . . .
there is no Strickland prejudice.").




                                           -7-
      Here, Ramirez received at most an informal plea offer3—one that expressly
contained no promises or assurances. He simply has not shown that a reasonable
probability existed that the government would have extended a plea offer.
Additionally, as the district court observed, Ramirez never expressed a willingness
to cooperate or indicated that he possessed information that would benefit the
government. Consequently, Ramirez fails to demonstrate that he suffered the requisite
prejudice under Strickland and Frye, especially where Ramirez "has no right to be
offered a plea." Frye, 132 S. Ct. at 1410 (citation omitted).

                         B. Ramirez's Remaining Claims
      Ramirez obtained a certificate of appealability only as to his first claim. Thus,
we will not consider Ramirez's remaining claims. See Dodd v. United States, 614 F.3d
512, 518 (8th Cir. 2010) ("Generally, appellate review is limited to the issues

      3
        The Fourth Circuit encountered a similar situation post-Frye where the
government and defendant engaged in informal plea discussions, and the defendant
later asserted a § 2255 petition claiming ineffective assistance of counsel based on
his counsel's failure to apprise him of the discussions. See Merzbacher v. Shearin,
706 F.3d 356, 359 (4th Cir.), cert. denied, 134 S. Ct. 71 (2013). In Merzbacher,
prosecutors, defense counsel, and the trial court informally discussed the possibility
that the defendant would plead guilty in exchange for a recommended sentence of ten
years. Id. The trial court agreed to uphold the arrangement upon defendant's consent.
Id. Instead, defendant's counsel never informed defendant of the discussion, and
defendant proceeded to trial and was convicted on all counts. Id. He was sentenced
to four life sentences and a ten-year sentence, to run concurrently. Id. Defendant
asserted that he received ineffective assistance of counsel when his trial counsel
failed to inform him of these plea discussions. Id. The Fourth Circuit was troubled
because "several of the offer's terms lacked definition. Moreover, the undefined terms
were of the sort that require substantial negotiation and compromise." Id. at 369.
Thus, the court explained that "the offer's nascence figures prominently in the
calculus. The lack of definition in the plea offer makes it substantially harder to
determine it likely that a plea acceptable to [the defendant] would have been 'entered
without the prosecution canceling it or the trial court refusing to accept it.'" Id. at 370
(footnote omitted) (quoting Frye, 132 S. Ct. at 1409).

                                           -8-
specified in the certificate of appealability." (quotation and citation omitted)).
Although "we retain discretion to consider sua sponte issues beyond those specified
in a certificate of appealability," Thomas v. United States, 737 F.3d 1202, 1206 n.2
(8th Cir. 2013) (quotation and citation omitted), Ramirez has failed to demonstrate
that he warrants our exercise of such discretion here.

                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.

BYE, Circuit Judge, dissenting.

      I would reverse the district court and remand for an evidentiary hearing to
determine whether Ramirez's counsel withheld knowledge of the government's plea
and proffer proposal and, if so, whether the failure was prejudicial to Ramirez.

       Under § 2255(b), the district court is required to accept the allegations in a
prisoner's § 2255 motion as true and conduct an evidentiary hearing on those
allegations unless they are refuted by the record, are inherently incredible, merely
conclusory, or they would not have entitled the petitioner to relief. See Garcia v.
United States, 679 F.3d 1013, 1014 (8th Cir. 2012). The district court denied
Ramirez's § 2255 petition without conducting an evidentiary hearing. The district
court and the majority conclude an evidentiary hearing is unwarranted under their
interpretations of Missouri v. Frye, 132 S.Ct. 1399 (2012).

       The majority limits Frye to its most narrow holding: attorneys must make
formal plea offers known to their clients. However, I read Frye to require effective
counsel during the process of plea negotiations. Id. at 1407 ("The reality is that plea
bargains have become so central to the administration of the criminal justice system
that defense counsel have responsibilities in the plea bargain process, responsibilities
that must be met to render the adequate assistance of counsel that the Sixth

                                          -9-
Amendment requires in the criminal process at critical stages." (emphasis added)); see
also Kovacs v. United States, 744 F.3d 44, 52 (2d Cir. 2014) ("The proper focus is not
on the specific test applied in . . . Frye; each case is a context-specific application of
Strickland directed at a particular instance of unreasonable attorney performance.").

        The Supreme Court has "long recognized that the negotiation of a plea bargain
is a critical phase of litigation for purposes of the Sixth Amendment right to effective
assistance of counsel." Padilla v. Kentucky, 559 U.S. 356, 373 (2010), citing
McMann v. Richardson, 397 U.S. 759, 770-71 (1970) (emphasis added); see also
Burger v. Kemp, 483 U.S. 776, 803-04 (1987) (noting "pretrial plea negotiations" are
a critical stage of the criminal process (emphasis added)). Frye may not have required
the Supreme Court to examine a non-formal plea offer, but the Court still discussed
the process of gaining a plea deal: "criminal defendants require effective counsel
during plea negotiations." 132 S.Ct. at 1407-08 (emphasis added). No language
limits the requirement of effective counsel to "formal negotiations" or "formal plea
offers" but rather to simply "negotiations."

        As the majority notes, supra, at n.3, the Fourth Circuit recently encountered a
similar situation in Merzbacher v. Shearin, 706 F.3d 356 (4th Cir. 2013). Merzbacher
does not foreclose the application of Frye to nascent plea agreements, but rather
acknowledges "there may be cases in which a petitioner can show Strickland
prejudice despite the incipience of the plea offer he did not accept[.]" Id. at 369-70.
While the Fourth Circuit acknowledged a "lack of definition in the plea offer" made
it difficult to know whether the plea would have been adopted, the court also found
"significant evidence weighed against finding the petitioner and the prosecutor would
have agreed on a plea" and ultimately denied the petition because the petitioner had
failed to demonstrate a reasonable probability the plea would have been entered and
adopted. Id. at 370.




                                          -10-
       In the present case, Ramirez was not allowed to even offer evidence the plea
would have been entered and adopted. An evidentiary hearing is required to
determine whether Ramirez's lawyer truly did fail to inform Ramirez of the proffer
and plea deal and whether Ramirez would have cooperated with the government. If,
in fact, Ramirez would have cooperated and Ramirez's attorney failed to even notify
Ramirez of the nascent plea and proffer agreement, then Ramirez may be able to show
his counsel was constitutionally ineffective for failing to notify him of the proffer and
plea deal.

      On remand, Ramirez would also have the opportunity to demonstrate "a
reasonable probability that the end result of the criminal process would have been
more favorable by reason of a plea to a lesser charge or a sentence of less prison
time." Frye, 132 S.Ct. at 1409.

       At sentencing, the district court was clearly displeased with the mandatory
minimum required in Ramirez's case. The district court asked the government
whether there was an opportunity for a motion for substantial assistance which would
have changed the mandatory minimum and stated, "I think this is one of the most
unfair sentences I've been required to impose in my 18 years on the bench, and I do
it with a heavy heart." The district court subsequently sentenced Ramirez to the
mandatory minimum. A cooperation agreement would have prevented a mandatory
minimum; Ramirez should be allowed to develop a record below to show a
reasonable probability his sentence would have been less had he pleaded guilty with
the benefit of a cooperation agreement.

        In light of the strong emphasis on plea negotiations in Supreme Court
precedent, I find the record does not conclusively establish Ramirez was not entitled
to relief. Therefore, I would remand this case for an evidentiary hearing to determine
whether Ramirez's attorney did, in fact, fail to notify Ramirez of the potential
cooperation agreement and whether that failure was prejudicial to Ramirez.
                         ______________________________

                                          -11-
