                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                         File Name: 14a0215p.06

                     UNITED STATES COURT OF APPEALS
                                     FOR THE SIXTH CIRCUIT
                                       _________________


 UNITED STATES OF AMERICA,                                  ┐
                                     Plaintiff-Appellee,    │
                                                            │
                                                            │        No. 13-1626
         v.                                                 │
                                                             >
                                                            │
 TYRONE QUENTIN JOHNSON,                                    │
                                  Defendant-Appellant.      │
                                                            ┘
                           Appeal from the United States District Court
                         for the Eastern District of Michigan at Bay City.
                    No. 1:11-cr-20767—Thomas L. Ludington, District Judge.
                                Decided and Filed: August 29, 2014

                     Before: BOGGS, CLAY, and GILMAN, Circuit Judges.

                                        _________________

                                             COUNSEL

ON BRIEF: Robert A. Betts, Caro, Michigan, for Appellant. Janet L. Parker, UNITED
STATES ATTORNEY’S OFFICE, Bay City, Michigan, for Appellee.
                              _________________

                                              OPINION
                                        _________________

       BOGGS, Circuit Judge. Tyrone Johnson was charged with a drug offense by the State of
Michigan. After he declined the state’s plea offer, the state dismissed the charges, and a federal
grand jury later indicted him. Johnson was charged with and convicted of five drug-related
offenses: conspiracy to distribute heroin, in violation of 21 U.S.C. § 846; possession of heroin
with the intent to distribute, in violation of § 841(a)(1); distribution of heroin, also in violation of
§ 841(a)(1); use of a communication facility to facilitate the drug conspiracy, in violation of
§ 843(b); and use of a residence for the purpose of distributing heroin, in violation of



                                                   1
No. 13-1626                  United States v. Johnson                            Page 2

§ 856(a)(1). Johnson’s only claim on appeal is that he was deprived of effective assistance of
counsel in the state plea negotiations that preceded his federal prosecution, and that, as a result,
the federal indictment against him should have been dismissed. Johnson analogizes his case to
United States v. Morris, 470 F.3d 596, 600 (6th Cir. 2006), in which a panel of this court held
that dismissal of the federal indictment was proper where state counsel was ineffective and “the
United States Attorney’s Office made itself a party to the state court plea offer.” However,
Johnson’s case is not analogous to Morris because there is no indication that federal prosecutors
were involved in his state-court case, nor is there any indication that Johnson’s representation in
his state plea negotiations was ineffective. Accordingly, we affirm.

                                                 I

       On October 3, 2011, Wayne Stockmeyer, an undercover FBI drug-task-force officer,
arranged to purchase heroin from an individual named Daniel Huggard. Huggard, unaware that
Stockmeyer was an undercover agent, got into Stockmeyer’s car and made a call to a person he
called “Ty” to arrange the transaction. Stockmeyer then drove with Huggard to a nearby
residence and gave him $120 in marked bills to make the purchase. Huggard entered the
residence and emerged with 0.14 grams of heroin in hand. Later that day, police obtained a
search warrant and searched the residence, finding Johnson with the $120 in marked bills on his
person and drugs and drug paraphernalia within reach. The officers arrested Johnson, and he
was subsequently charged in state court with a single count of distribution of less than 50 grams
of a controlled substance.

       Johnson rejected the state’s plea offer. The state dismissed the charge, and Johnson was
then indicted federally, first in a one-count indictment for conspiracy to possess, with the intent
to distribute, 100 grams or more of a mixture or substance containing heroin, in violation of
21 U.S.C. § 846, and then in a superseding indictment charging the five counts for which he was
ultimately tried and convicted. The day before jury selection was to begin, Johnson filed a
motion to dismiss the superseding indictment on the ground that “defendant was denied effective
assistance of counsel in the state court proceeding as defendant was not advised of the actual
consequences of rejecting the state court plea offer as set forth in US v. Morris, 470 F3d 596 (6th
Cir, 2006) [sic].” In particular, though Johnson acknowledged that he “was advised by his state
No. 13-1626                 United States v. Johnson                             Page 3

defense counsel that if he refused to accept the tendered plea offer, that the case was going to be
dismissed and the Federal Government would pick up the case,” he claims that he was not
advised “of his potential liability under the Federal statutes and/or sentence guidelines.”
Johnson’s motion to dismiss followed an emergency motion to adjourn the jury trial, which “was
largely predicated on a request to be able to secure the information that ultimately was presented
with the Motion to Dismiss, including Mr. Johnson’s affidavit.” Following a hearing, the district
court denied the motions on the following grounds:

       Respectfully, on the basis of the affidavit that we’ve been furnished, there is no
       predicate for suggesting that anything was misrepresented to the gentleman. His
       argument is simply that he needed more and extensive information about the
       federal prosecuting regime, a matter which isn’t required by law.
       More importantly, there is no active involvement or any assertion of any active
       involvement of the prosecutorial arm of the federal government which is a
       necessary element under existing law. And respectfully, I deny each of the two
       motions.

       On appeal, Johnson argues that the district court erred in failing to find (1) “that there
was ‘entanglement’ of the federal prosecutor in the state plea process,” Appellant’s Br. at 27, and
(2) that Johnson’s counsel in the state proceedings was ineffective for “failing to discuss either
the state or the federal penalties with him,” Appellant’s Br. at 31.

                                                 II

       We review the district court’s factual findings for clear error and review its legal
conclusions de novo. United States v. Utesch, 596 F.3d 302, 306 (6th Cir. 2010).

                                                 A

       In Morris, a panel of this court held that, under certain circumstances, a district court may
dismiss a federal indictment to remedy a constitutional violation in related state-court
proceedings. The court held that the defendant was deprived of the effective assistance of
counsel where he was able to meet with his appointed counsel for only a few minutes in a public
and crowded “bull pen” cell before having to decide whether to plead guilty, and where his
counsel had not received complete discovery, was not aware of the defendant’s criminal record,
and was misinformed—and thus misinformed the defendant—about the federal guideline range
No. 13-1626                 United States v. Johnson                            Page 4

that the defendant would face if he rejected the state’s plea offer. See Fuller v. Sherry, 405 F.
App’x 980, 987 (6th Cir. 2010) (summarizing the holding in Morris). The court further held that
dismissal of the federal indictment was appropriate to remedy the constitutional violation.

       In contrast to Morris, when the federal government does not involve itself in state plea
negotiations, dismissal of the indictment is not appropriate. In United States v. McConer,
530 F.3d 484, 487 (6th Cir. 2008), “[t]he State informed [the defendant] that if he pled guilty as
charged, his case would not be referred for federal prosecution.” McConer declined to plead
guilty, the state dismissed its case, and a criminal complaint was filed against McConer by the
federal government. Ibid. The court held that “dismissal of the federal indictment would not be
an appropriate remedy in [McConer’s] case because the federal government was not involved in
any supposed violation.” Id. at 494. The court distinguished Morris on that basis. See id. at
494–95.

                                                 B

       If the federal government were involved in the state plea process, there would also be a
question of whether the defendant was deprived of effective assistance of counsel in those state
proceedings.

       As an initial matter, we note that “[i]neffective assistance claims are more properly raised
in a post-conviction proceeding brought pursuant to 28 U.S.C. § 2255, where the record
regarding counsel’s performance can be developed in more detail,” than they are on direct
appeal. United States v. Lopez-Medina, 461 F.3d 724, 737 (6th Cir. 2006). “This Court typically
will not review a claim of ineffective assistance on direct appeal except in rare cases where the
error is apparent from the existing record.” Ibid.

       When we do nonetheless review an ineffective-assistance claim on direct appeal, we
apply the two-part test first articulated in Strickland v. Washington, 466 U.S. 688, 687 (1984).
“[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas based on
ineffective assistance of counsel.”    Hill v. Lockhart, 474 U.S. 52, 58 (1985).         “First, the
defendant must show that counsel’s performance was deficient. This requires showing that
counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
No. 13-1626                United States v. Johnson                             Page 5

defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. Second, the defendant must
show that he was prejudiced by the deficient performance. Ibid. That is, the defendant must
show that “counsel’s constitutionally ineffective performance affected the outcome of the plea
process.” Hill, 474 U.S. at 59. Where the defendant chose not to plead guilty, he must establish
a reasonable probability that, but for counsel’s ineffective performance, he would have pleaded
guilty. See Yarbrough v. United States, 51 F.3d 274 (6th Cir. 1995) (unpublished).

                                                III

                                                A

       Here, the district court rejected Johnson’s motion to dismiss after determining that federal
prosecutors had not involved themselves in Johnson’s case.         At the district-court hearing,
Assistant United States Attorney Janet Parker stated: “Not only was there no involvement by my
office and I believe that I didn’t even know who the defense attorney was, much less was there
any discussion between us, nor do I know who the prosecutor was on the case.” Johnson did not
dispute that statement at the time that it was made, and he does not dispute it on appeal. Instead,
he argues that federal involvement should be inferred from the fact that the Mid-Michigan Safe
Streets Task Force, which was involved in the investigation of his case, is a joint law-
enforcement effort involving the FBI, that he was told that he would not be prosecuted federally
if he accepted the state’s plea offer, and that “the federal prosecutor was working closely with
the state prosecutor in fashioning an appropriate resolution of the state charges pending against
Daniel Huggard, the task force informant who was to testify against Johnson.” Appellant’s Br. at
28.

       First, the involvement of FBI agents in a joint federal-state law-enforcement task force is
not the same as the involvement of the federal prosecutor. As the government points out, “FBI
agents cannot negotiate plea agreements with defendants.” Appellee’s Br. at 26 (quoting United
States v. Marks, 209 F.3d 577, 582 (6th Cir. 2000)). Second, McConer likewise involved a joint
federal-state law-enforcement effort, Project Safe Neighborhoods, yet we expressly found no
federal “entanglement” in the plea process in that case. Johnson suggests that the United States
Attorney’s Office must have told the state prosecutors that they would not prosecute Johnson,
but there is no evidence whatsoever in the record to that effect. And unlike the plea agreement in
No. 13-1626                 United States v. Johnson                              Page 6

Morris, the rejected state plea agreement here nowhere referenced, let alone negated, the
possibility of federal charges. Finally, even assuming that federal prosecutors were involved in
having Huggard’s state charges dismissed in exchange for his testimony, that would speak only
to Huggard’s possible rights under Morris, not Johnson’s.

       Because there is no evidence in the record that federal prosecutors were involved in
Johnson’s state plea negotiations, the district court did not clearly err in so finding. And in light
of the lack of federal involvement, “dismissal of the federal indictment would not be an
appropriate remedy.” McConer, 530 F.3d at 494.

                                                 B

       Even had federal prosecutors involved themselves in Johnson’s state plea negotiations,
there is no indication that Johnson’s state counsel was ineffective.        As Johnson concedes,
“[t]here is scant evidence regarding the representation that was provided to Johnson at the state
court level.” Appellant’s Br. at 18. For that reason alone, we would normally decline to
consider his ineffective-assistance claim on direct appeal, leaving that claim for consideration on
the merits once the record has been more fully developed. Here, however, his claim of error fails
even without a showing of federal “entanglement,” so we will decide the case as a matter of law
on that basis.

        On appeal, Johnson does not claim that his counsel misinformed him, as was the case in
Morris; rather, he claims that “[t]here was no evidence presented” that Johnson was 1) informed
of his state sentencing-guidelines range, 2) advised that he would be a career offender under
federal law, exposing him to a potential guideline range in federal court of 360 months to life in
prison, 3) represented by an attorney in state court who was familiar with federal criminal
practice, 4) given adequate time to make an informed decision about his plea agreement, or
5) represented by counsel who understood the strength of the case against him. Appellant’s Br.
at 22. In particular, Johnson apparently contends the he should have been offered a comparison
between his guidelines sentencing range in state court and his likely range in federal court. Id. at
31.
No. 13-1626                United States v. Johnson                                Page 7

       First, the burden is on Johnson to show that his representation was ineffective. To say
that there was “no evidence” that it was effective is essentially to concede that he has failed to
discharge his burden. Second, to require state counsel to give a precise “compare and contrast”
between state and federal law would be unreasonable, especially in this case. More importantly,
as the government notes, it would have been impossible for Johnson’s counsel to have predicted
what federal charges would be brought against him and what further investigation into his
criminal conduct would reveal. If counsel has a duty to inform Johnson of the possibility that
federal charges might be brought, she discharged that duty in this case. To the extent that
Johnson’s ineffective-assistance claim is premised on the other alleged failures referenced above,
he does not point to adequate evidence in the record to support his allegations.

                                                IV
       Because Johnson offers no evidence that federal prosecutors were involved in his state
plea negotiations and because there is, in any event, no evidence that his counsel in the state
proceedings was ineffective, we AFFIRM the district court’s denial of Johnson’s motion to
dismiss the indictment.
