                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 12a0165n.06

                                           No. 10-5047

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                          FILED
                                                                                     Feb 08, 2012
UNITED STATES OF AMERICA,                              )
                                                       )                       LEONARD GREEN, Clerk
       Plaintiff-Appellee,                             )
                                                       )
v.                                                     )   ON APPEAL FROM THE UNITED
                                                       )   STATES DISTRICT COURT FOR
                                                       )   THE EASTERN DISTRICT OF
KENNETH LESTER MULLIKIN, JR.,                          )   KENTUCKY
                                                       )
       Defendant-Appellant.                            )


Before: SILER and KETHLEDGE, Circuit Judges; ADAMS, District Judge.*

       SILER, Circuit Judge. Kenneth Mullikin was indicted on five counts of receipt of child

pornography, in violation of 18 U.S.C. § 2252(a)(2); one count of possession of child pornography,

in violation of 18 U.S.C. § 2252(a)(4)(B); and one count of forfeiture. He pled guilty to one count

of receipt of child pornography and the forfeiture charge, and the government dismissed the

remainder of the charges. Almost four months after entering his guilty plea, Mullikin moved to

withdraw his plea, claiming that it was unknowing and involuntary because of ineffective assistance

of counsel. Specifically, he claims his attorney should have filed a motion to suppress evidence

seized pursuant to warrants he believes were constitutionally infirm. The district court denied his

motion to withdraw, and Mullikin was sentenced to 97 months of imprisonment. Because the record




       *
         The Honorable John R. Adams, United States District Judge for the Northern District of
Ohio, sitting by designation.
No. 10-5047
United States v. Mullikin

is not adequately developed to address the ineffective assistance of counsel claim, we decline to

address it on direct appeal and AFFIRM the judgment.

                                                 I.

        In 2008, Mullikin participated in an online chat, using the name “MomJane,” with an

undercover FBI agent. During the conversation, “MomJane” indicated that she had a four-year-old

daughter that she and her husband sexually abused. A police detective applied for a search warrant

to “further continuing investigation of child sexual abuse.” A state court judge issued the warrant,

and several items were seized, including computers. Thereafter, the police requested additional

warrants to have forensic experts search the contents of the two computers and cellular phone. This

time, the officer asked to search for “pornographic images involving children” and “images and

statements that tend to show a propensity for child sexual abuse.”

        The judge issued the second warrant, and officials discovered 704 still images and 98 videos

of child pornography. Mullikin was charged with receiving and possessing child pornography. He

was represented by Mark Bubenzer. Mullikin eventually pled guilty to one count of receipt of child

pornography and a forfeiture claim. He signed a plea agreement, whereby he waived the right to

“appeal and the right to attack collaterally the guilty plea, conviction, and sentence, including any

order of restitution.”

        At his rearraignment on June 16, 2009, Mullikin admitted to using computer equipment in

his residence to download, view, and store computer files containing child pornography. The district

court conducted a Rule 11 plea colloquy and set a sentencing date for October 13, 2009. On July

21, 2009, Bubenzer filed a motion to withdraw as counsel, explaining that “an impasse has arisen

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United States v. Mullikin

between counsel and Mr. Mullikin as to how to effectively proceed with the sentencing process.”

The district court granted the motion and appointed new counsel. On October 8, 2009, Mullikin,

through his new attorney, filed a motion to withdraw his guilty plea, stating the following:

       [D]efendant submits that during the negotiation of his plea, he was not advised of his
       rights to pursue a viable suppression issue by his former counsel. Specifically,
       defendant has recently learned of and desires to pursue a motion to suppress the
       search of his residence based on the holding in United States v. Hodson, 543 F.3d
       286 (6th Cir. 2008). Defendant submits that during the representation by former
       counsel, he was not advised as to the validity of the search of his residence, was not
       made aware of the law regarding such issues, and was not advised about his rights
       to pursue a motion to suppress on the grounds that the search of his residence may
       have been invalid.

       The district court held a hearing on the motion and noted that whether the plea could be

withdrawn on the basis of ineffective assistance of counsel would turn on whether the suppression

motion would have been successful. If not, the district court reasoned, there would be no prejudice,

as is required for showing ineffective assistance of counsel. It held a “mini-suppression hearing” to

determine the merits of the motion to suppress. At the hearing, Mullikin was the only witness called.

He testified that he asked Bubenzer to “check the warrant” and that Bubenzer told him the “warrant

was good.”

       He also testified that when he received the pre-sentence investigation report, around

September 15, 2009, he became aware that he may have a viable suppression issue. The district

court denied the motion to withdraw, addressing the factors for such a motion on the record and also

finding that a motion to suppress would not have succeeded on the merits. Mullikin was sentenced

to 97 months of imprisonment.



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United States v. Mullikin

                                                   II.

        A district court’s denial of a motion to withdraw a guilty plea is reviewed for abuse of

discretion, and the defendant has the burden to demonstrate that the motion should have been

granted. United States v. Dixon, 479 F.3d 431, 436 (6th Cir. 2007).

                                                  A.

        As a preliminary matter, the government has filed a motion to dismiss the appeal, arguing

that Mullikin waived his right to appeal in the plea agreement. Whether a defendant has waived his

right to appeal is reviewed de novo. United States v. Swanberg, 370 F.3d 622, 626 (6th Cir. 2004).

Mullikin correctly points out that where an appeal implicates the voluntary nature of a guilty plea

by claiming ineffective assistance of counsel at the guilty plea stage, the appeal is not barred by an

appeal waiver provision in the plea agreement. See In re Acosta, 480 F.3d 421, 422 (6th Cir. 2007).

Thus, because Mullikin challenges the validity of the guilty plea (and necessarily the plea agreement

and waiver itself) on grounds of ineffective assistance of counsel, the appeal is not barred by the

waiver in the guilty plea.

                                                   B.

        A defendant may withdraw a guilty plea before sentencing if he can demonstrate “a fair and

just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). Mullikin argues that his

counsel’s ineffectiveness is itself a “fair and just” reason for allowing withdrawal of the guilty plea.

Thus, a determination as to whether Mullikin should have been allowed to withdraw his plea requires

us to address his ineffective assistance of counsel claim. “‘As a general rule, a defendant may not

raise ineffective assistance of counsel claims for the first time on direct appeal, since there has not

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United States v. Mullikin

been an opportunity to develop and include in the record evidence bearing on the merits of the

allegations.’” United States v. Williams, 612 F.3d 500, 508 (6th Cir. 2010) (quoting United States

v. Wunder, 919 F.2d 34, 37 (6th Cir. 1990)). The typical method for raising such claims is to

proceed under 28 U.S.C. § 2255.

       To establish a claim for ineffective assistance of counsel, a defendant must show that: 1) his

attorney’s representation “fell below an objective standard of reasonableness;” and 2) “the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687-88 (1984). In

this case, the district court held a hearing that focused on the second Strickland factor, by wading

into the hypothetical merits of the would-be motion to suppress. It did not, however, address the first

factor and even specifically noted on the record that the hearing was not “a 2255 hearing,” meaning

it was not intended to fully address the merits of an ineffective assistance of counsel claim.

       Typically, we do not address ineffective assistance of counsel claims on direct appeal because

the trial court record often does not contain the attorney’s rationale for the challenged action or

inaction. See United States v. McCarty, 628 F.3d 284, 295-96 (6th Cir. 2010) (holding that when

the appellate record “consists largely of unsubstantiated allegations without affidavits from defense

counsel or [the defendant],” it is not adequately developed). In this case, only Mullikin testified at

the hearing, and his attorney was not given an opportunity to present his version of the events.

Mullikin admitted that he does not know what, if anything, his attorney did to ensure that the search

warrant was valid or whether his attorney had read the Hodson case and decided it did not apply.

       Because the district court did not address the issue of the attorney’s performance, we would

be left to speculate about the attorney’s reasons for not filing a motion to suppress. Thus, the record

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United States v. Mullikin

is not adequately developed for us to review the claim. Our holding is not to be construed as a

determination on the merits of the suppression issue. Neither is it a bar to a motion raised pursuant

to 28 U.S.C. § 2255. We simply decline to address the ineffective assistance of counsel claim on

direct appeal in light of a record that is not adequately developed.

       The motion to dismiss is DENIED. The judgment is AFFIRMED.




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