                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 06a0114p.06

                     UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                     X
                               Plaintiff-Appellant, -
 LANCE POUGH,
                                                      -
                                                      -
                                                      -
                                                          No. 04-3863
          v.
                                                      ,
                                                       >
 UNITED STATES OF AMERICA,                            -
                              Defendant-Appellee. -
                                                     N
                      Appeal from the United States District Court
                     for the Northern District of Ohio at Cleveland.
                   No. 03-00697—Solomon Oliver, Jr., District Judge.
                                     Argued: February 1, 2006
                                Decided and Filed: March 31, 2006
                      Before: RYAN, CLAY, and GILMAN, Circuit Judges.
                                        _________________
                                             COUNSEL
ARGUED: Spiros P. Cocoves, Toledo, Ohio, for Appellant. Robert J. Becker, ASSISTANT
UNITED STATES ATTORNEY, Akron, Ohio, for Appellee. ON BRIEF: Spiros P. Cocoves,
Toledo, Ohio, for Appellant. Robert J. Becker, ASSISTANT UNITED STATES ATTORNEY,
Akron, Ohio, for Appellee.
       GILMAN, J., delivered the opinion of the court, in which RYAN, J., joined. CLAY, J. (pp.
10-13), delivered a separate dissenting opinion.
                                        _________________
                                            OPINION
                                        _________________
        RONALD LEE GILMAN, Circuit Judge. Lance Pough, a federal prisoner who first pled
guilty to federal drug charges and later to a state murder charge, appeals the denial of his § 2255
motion to vacate his sentence. He contends that the two lawyers who represented him during the
course of his plea proceedings in the district court, as well as his court-appointed appellate counsel
on direct appeal, all rendered constitutionally ineffective assistance. Pough asserts that this entitles
him to vacate his guilty plea or, at a minimum, to an evidentiary hearing. In response, the
government maintains that none of the three lawyers performed deficiently, and that the district court
should never have addressed the merits of Pough’s case because his motion was untimely. For the
reasons set forth below, we AFFIRM the judgment of the district court without reaching the
government’s argument as to timeliness.


                                                   1
No. 04-3863           Pough v. United States                                                     Page 2




                                       I. BACKGROUND
        Pough was arrested on May 28, 1999, arraigned that same day, and bound over to the grand
jury the following week. Attorney Dennis Terez represented Pough at the arraignment, but Pough
retained attorney Charles Mickens to appear on his behalf shortly thereafter. When Pough was
subsequently indicted on one count of conspiracy to distribute both powder and crack cocaine, and
on three counts of distributing those two substances, Mickens withdrew as counsel of record.
Jacqueline Johnson of the Federal Public Defender’s Office was then appointed to represent Pough
on June 29, 1999.
         In the summer and fall of 1999, Johnson entered into plea negotiations with Assistant U.S.
Attorney Robert Becker on Pough’s behalf. Becker sent Johnson a letter in August of 1999 to
express the government’s interest in meeting with Pough for an off-the-record proffer session. The
letter sent by Becker explained that, while no statement made by Pough during the session would
be used in the government’s case-in-chief in any criminal matter, “the government may make
derivative use of any information which [Pough] provides and may pursue investigative leads
suggested by statements or other information which he provides.”
        In a letter dated September 16, 1999, Becker made a preliminary plea offer to Johnson,
estimating that Pough would be sentenced to 14 years in prison, with a reduction of up to 2 years
for good behavior. Pough, however, had previously contacted Becker and a state law-enforcement
official to express his desire to cooperate in exchange for the government’s promise to move for a
subsequent reduction in his sentence pursuant to Rule 35 of the Federal Rules of Criminal
Procedure. Subject to certain limitations, Rule 35(b) permits a district court to reduce the
defendant’s sentence if the government indicates in a motion that the defendant has provided
“substantial assistance in investigating or prosecuting another person.”
      Becker informed Johnson that Pough had contacted him directly, and Johnson responded on
September 22, 1999 with a stern letter to Pough. In relevant part, Johnson told Pough:
       . . . I cannot stress enough that you must not have direct contact with [Becker] or any
       law enforcement officer without advice and notice to your counsel. I advised you in
       our last conversation that you should rely upon the advice of your state appointed
       counsel regarding your desire to cooperate. I advised [Becker] that you must have
       counsel because of the possibility of implicating yourself in uncharged state criminal
       offenses.
       Instead, you ignored my advice and directly contacted the prosecutor to inform him
       that you want to cooperate. You’ve received direct advice from your state appointed
       counsel, not to make any further statements to the local law enforcement officers.
       If you continue to disregard my advice regarding your case, you may complicate and
       jeopardize the plea negotiations that I have already pursued with [Becker].
         According to Pough’s affidavit, he spoke to Johnson repeatedly after the government made
its initial plea offer, expressing his desire to accept the plea agreement so long as he could secure
a later reduction in his sentence via a motion brought by the government under Rule 35. Pough
admits that he “would not accept the 1st plea of 14 years, unless [he] received a Rule 35 motion with
it.” At that point, the government had not included the possibility of such a motion in the plea
agreement itself, and Becker’s letters to Johnson on this issue indicated only that he “would be
willing to consider a Rule 35 motion at a later date, depending on what deal [Pough] is able to make
with, and what value [Pough] is to, the state authorities.” Pough rejected the government’s offer.
No. 04-3863           Pough v. United States                                                       Page 3


         Sometime prior to October 4, 1999, the government hardened its position. Although the
record does not contain Becker’s October 4th letter to Johnson, Becker recounted the content of that
letter in subsequent correspondence with Johnson. According to Becker, the government learned
at some point that the state of Ohio was preparing to indict Pough for the murder of Brad McMillan,
an informant for the Bureau of Alcohol, Tobacco, and Firearms who was scheduled to testify
against Pough on drug-related charges pending in state court. Becker claimed that, consistent with
ethical principles, he could not ignore that information and would have to include the murder as
relevant conduct for the purposes of Pough’s sentencing, thus exposing Pough to a potential life
sentence in federal prison in addition to a possible death sentence under state law.
        In his October 4, 1999 letter, and again in a letter dated January 31, 2000, Becker outlined
a “best case scenario” under which Pough would plead guilty in both state and federal court, receive
credit for accepting responsibility and assisting the government in other prosecutions, and would
serve his federal and state sentences concurrently in federal facilities. Becker also addressed
Pough’s concern that the only basis for the state charges was information that Pough had provided
to federal authorities during the proffer session, explaining that state and federal authorities knew
about the murder prior to the proffer and that derivative evidence (which the proffer agreement
expressly allowed the government to use) “substantiated what the investigation previously
produced.”
        Pough appeared before the district court on February 14, 2000 and entered a plea of guilty
to the one conspiracy count. After entering his plea, Pough again changed counsel, retaining
attorney Edwin Vargas, who entered an appearance on April 10, 2000. Vargas sought to continue
the sentencing hearing in order to investigate Pough’s allegations that the authorities had violated
the proffer agreement and to decide whether Pough should withdraw his plea.
        The sentencing hearing was eventually held on July 19, 2000. Vargas informed the district
court that he had reviewed the plea agreement with Pough and had answered all of the questions that
Pough had regarding that agreement. The district court then explained to Pough the details and
consequences of his agreement with the government, including his waiver of his rights to appeal and
to seek habeas corpus relief. After accepting the plea agreement, the court sentenced Pough to 204
months (17 years) in prison, the sentence to run concurrently with his state sentence for murder. In
addressing the court, Pough told the district judge:
       I’m glad I got the deal that I got, your Honor, because I feel I got it off my chest, and
       I did what I felt was best . . . During this process, I know it didn’t go exactly like I
       thought it was going to go, and things didn’t go in favor for me like I thought they
       were going to, but I feel confident in what went on.
        Notwithstanding the plea agreement’s waiver of his right to appeal, Pough filed a notice of
appeal anyway, and attorney Richard Lillie was appointed by the district court to represent him.
Lillie subsequently filed an Anders brief in this court and sought permission to withdraw from the
case. In an unpublished order, this court granted Lillie’s motion to withdraw, noted that he had
“filed an acceptable Anders brief,” and found that “[c]ounsel reviewed the record and properly
concluded that no relief is warranted.” Rejecting all of Pough’s challenges as meritless, this court
summarily affirmed his sentence. The mandate issued on October 11, 2001.
       Pough’s next move was to collaterally attack his conviction and sentence under 28 U.S.C.
§ 2255, which permits district courts to vacate, set aside, or correct sentences in federal cases. On
September 29, 2002, Pough petitioned the district court for an extension of the limitations period
within which to file for relief under § 2255. Pough’s motion was submitted just 13 days before the
one-year statute of limitations period under § 2255 would have expired. The district court denied
Pough’s request for an extension, but Pough proceeded to file his § 2255 motion anyway on April
No. 04-3863           Pough v. United States                                                     Page 4


16, 2003. In response, the government argued that Pough’s motion was untimely. The district court
agreed, and therefore granted the government’s motion to dismiss on May 30, 2003.
        Pough then asked the district court to reconsider its decision to dismiss his § 2255 motion,
citing the Second Circuit’s decision in Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001), for
the proposition that courts can construe a pro se petitioner’s written request to extend the filing
deadline as the § 2255 motion itself. The district court ultimately agreed that Pough’s September
29, 2002 letter to the court, when construed liberally, sufficed as a motion under § 2255. This
caused the district court to reinstate the motion. The court nevertheless denied Pough relief on the
merits, concluding that neither his trial nor his appellate counsel had rendered constitutionally
ineffective assistance. This appeal followed.
                                           II. ANALYSIS
A.      Standard of review and legal framework
        We review de novo the denial of a federal prisoner’s motion to vacate, set aside, or correct
a sentence, but will overturn a district court’s factual findings only if they are clearly erroneous.
Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003). A claim of ineffective assistance of
counsel presents a mixed question of law and fact that we likewise review de novo. Mallett v.
United States, 334 F.3d 491, 497 (6th Cir. 2003). Finally, we will reverse a district court’s decision
not to hold an evidentiary hearing only if that court abused its discretion. Williams v. Bagley, 380
F.3d 932, 977 (6th Cir. 2004).
        A prisoner seeking relief under § 2255 “must allege as a basis for relief: (1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact
or law that was so fundamental as to render the entire proceeding invalid.” Mallett, 334 F.3d at 496-
97 (citation omitted). In the present case, Pough alleges that his constitutional right to the effective
assistance of counsel was violated, placing his claim within the first of the three categories
listed above. Pough must prove his allegation that his lawyers were constitutionally ineffective by
a preponderance of the evidence. See McQueen v. United States, 58 F. App’x 73, 76 (6th Cir. 2003)
(unpublished) (“Defendants seeking to set aside their sentences pursuant to 28 U.S.C. § 2255 have
the burden of sustaining their contentions by a preponderance of the evidence.”); see also Wright
v. United States, 624 F.2d 557, 558 (5th Cir.1980) (“In a section 2255 motion, a petitioner has the
burden of sustaining his contentions by a preponderance of the evidence.”).
B.      Even though Pough’s § 2255 motion may have been untimely, this court
        need not reach the issue because the motion fails on the merits
         Although the government did not cross-appeal the district court’s decision to amend its
earlier judgment, the government argues that the district court erred by accepting Pough’s § 2255
motion as timely filed. The government maintains that federal courts lack jurisdiction over motions
to extend the filing deadline for relief under § 2255 because the court does not acquire jurisdiction
over the petitioner’s case until the § 2255 motion itself is filed. Under that theory, the district court
erred in construing Pough’s extension request as a § 2255 motion. Furthermore, because the § 2255
motion itself was not filed until April of 2003, well after the limitations period had run, the
government contends that the § 2255 motion was untimely and should have been dismissed.
        The government correctly notes that this circuit has not yet endorsed the approach adopted
by the Second Circuit in Green, 260 F.3d at 83. In addition, the government may also be correct
that, even assuming that this court would follow Green, the decision of the district court to construe
Pough’s motion to extend time as the § 2255 motion itself constitutes an unwarranted extension
of Green.
No. 04-3863            Pough v. United States                                                        Page 5


         We need not address these concerns, however, because the one-year statute of limitations
for filing a motion under § 2255 is not jurisdictional. See Dunlap v. United States, 250 F.3d 1001,
1004-05 (6th Cir.2001) (holding that the statute of limitations in § 2255 is not a jurisdictional bar
and that equitable tolling is therefore available); see also Barnard v. Conley, 36 F. App’x 813, 816
(6th Cir. 2002) (unpublished) (Ryan, J., concurring in the judgment) (refusing to reach a timeliness
issue not raised below because “the one-year period of limitations found in § 2255 and applicable
to § 2254 is not a jurisdictional requirement,” and instead deciding the case on the merits of the
petitioner’s ineffective-assistance-of-counsel claim). Whether Pough has complied with the
limitations period is therefore not an issue that we have to decide as a threshold matter, as we would
have to do if satisfying the limitations period were a jurisdictional prerequisite. See Steel Co. v.
Citizens for a Better Environment, 523 U.S. 83, 94-95 (1998) (holding that federal courts must
assure themselves that they have subject matter jurisdiction before addressing the merits of a suit).
        We may instead proceed directly to the merits of Pough’s case, which can be resolved in a
straightforward manner and will also result in the denial of his motion. As explained in a concurring
opinion from the Eleventh Circuit,
        a district court is not required to rule on whether an asserted statute of limitations bar
        applies if the § 2255 motion may be denied on other grounds. Sometimes it will be
        easier for a court to deny relief on the merits than to figure out the issues relating to
        the statute of limitations. Nothing in the statute prohibits a court from proceeding
        in that way . . . .
Aron v. United States, 291 F.3d 708, 718 (11th Cir. 2002) (Carnes, J., concurring). We agree.
Furthermore, two district judges in the Eastern District of Michigan have recently interpreted the
caselaw regarding the § 2255 limitations period as permitting them to reject § 2255 motions on the
merits even if the filings were possibly untimely. See Holman v. Cason, No. 04-CV-60087-AA,
2005 WL 2313879, at *4 (E.D. Mich. Sept. 22, 2005) (unpublished) (declining “to dismiss [the]
Petitioner’s habeas petition on the basis of the statute of limitations because it [was] easier to deny
relief on the merits than to figure out the issues relating to the statute of limitations”) (citation and
quotation marks admitted); Crew v. Cason, No. 04-CV70841-DT, 2005 WL 2123729, at *4 (E.D.
Mich. Aug. 31, 2005) (unpublished) (same). We will follow the same course in this appeal, and will
now turn to Pough’s ineffective-assistance-of-counsel claims.
C.      The district court correctly determined that Pough’s trial counsel did
        not render ineffective assistance
       Under the familiar standard announced in Strickland v. Washington, 466 U.S. 668 (1984),
Pough must prove that (1) his trial “counsel’s representation fell below an objective standard of
reasonableness,” id. at 687-88, and (2) that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Id. at 694. The
Supreme Court has modified Strickland’s prejudice prong in the context of guilty pleas, holding that
a defendant “must show that there is a reasonable probability that, but for counsel’s errors, he would
not have pleaded guilty and instead would have insisted on going to trial.” Hill v. Lockhart, 474
U.S. 52, 59 (1985).
        In evaluating whether an attorney’s performance was constitutionally deficient, we recognize
“that counsel is strongly presumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment.” Strickland, 466 U.S. at 690. We
“also must not indulge in hindsight, but must evaluate the reasonableness of counsel’s performance
within the context of the circumstances at the time of the alleged errors.” McQueen v. Scroggy, 99
F.3d 1302, 1311 (6th Cir. 1996), overruled on other grounds, In re Abdur’Rahman, 392 F.3d 174
(6th Cir. 2004) (en banc). Defendants alleging the ineffective assistance of counsel bear “a heavy
No. 04-3863           Pough v. United States                                                   Page 6


burden of proof.” Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005). A defendant challenging his
attorney’s conduct during plea bargaining, moreover, “must show that counsel did not attempt to
learn the facts of the case and failed to make a good-faith estimate of a likely sentence. He must also
show that his lawyer’s deficiency was a decisive factor in his decision to plead guilty.” United
States v. Cieslowski, 410 F.3d 353, 358-59 (7th Cir. 2005).
       Pough’s motion fails under the first prong of the Strickland/Hill analysis. First and foremost,
Pough has not provided any evidence that either of the attorneys handling his guilty plea—Johnson
or Vargas—performed below an objective standard of reasonableness. The bulk of Pough’s
contentions concern Johnson, whom Pough says performed deficiently by advising him not to
provide information about drug-related homicides in Youngstown, Ohio without first reaching an
agreement with the government as to a reduction in his sentence. Johnson’s allegedly faulty advice,
Pough maintains, was a product of her failure to investigate the facts underlying the Youngstown
crimes, which purportedly led her to believe that Pough was a suspect in those crimes.
        Given the strong presumption that attorneys “render[] adequate assistance and ma[k]e all
significant decisions in the exercise of reasonable professional judgment,” Strickland, 466 U.S. at
690, the record contains ample indications that Johnson acted in accordance with applicable
professional standards. Although Pough chides Johnson for failing to ascertain whether he was a
suspect in the Youngstown crimes, the record is devoid of any indication that Johnson’s advice to
Pough had anything to do with whether or not he was implicated in the Youngstown crimes. Rather,
Johnson told Pough in the September 22, 1999 letter to “rely upon the advice of [his] state appointed
counsel regarding [his] desire to cooperate.”
        Because that attorney had not yet secured a plea agreement on the pending state charges, and
because Pough’s knowledge of the Youngstown crimes might have been a valuable bargaining chip
during negotiations with the state, Johnson could reasonably have concluded that Pough should not
reveal such valuable information in the mere hope of later obtaining relief under Rule 35. This is
especially true because the government did not guarantee relief under Rule 35, but said only that it
would “consider” such a motion after state officials acted. In sum, the tactical decision of a criminal
defense lawyer that her client should cooperate only after a deal is on the table is not objectively
unreasonable. Cf. Buell v. Mitchell, 274 F.3d 337, 360 (6th Cir. 2001) (“To the extent that Buell
believes his counsel should have undertaken a different strategy in conducting the investigation and
determining how best to advocate on Buell’s behalf, these are tactical decisions that cannot form the
basis for an ineffective assistance claim.”).
         Johnson’s advice to Pough made eminent sense for at least two other reasons. The first is
that Pough himself repeatedly reaffirmed that he would accept the government’s original plea offer
only if the government promised him relief under Rule 35. But there was never a guarantee that the
government would offer to make a subsequent Rule 35 motion, or, if it did, that it would do so on
the basis of information about the Youngstown crimes. The government, after all, acknowledged
throughout the negotiations that it was interested in “the murder of Brad McMillan in Warren, not
[the] Youngstown homicides.”
        Secondly, Johnson advised Pough in her September 22, 1999 letter that his state-appointed
counsel had already instructed him “not to make any further statements to local law enforcement
officers.” When she advised Pough not to provide information about the Youngstown crimes to state
officials, therefore, Johnson was simply reiterating advice previously given by Pough’s defense
attorney in the state-court proceedings, the latter attorney being more familiar with the advantages
and disadvantages of revealing the relevant information at that time.
       Because Johnson did not render ineffective assistance, Vargas as successor trial counsel did
not act unreasonably in failing to raise Johnson’s performance as an issue during sentencing.
No. 04-3863           Pough v. United States                                                    Page 7


Vargas’s initial motion to continue the sentencing hearing was based on his need for more time to
discuss with Pough whether the latter should withdraw his guilty plea, and also for more time to
investigate whether Pough’s previous attorney had permitted statements made during the proffer
session to be misused. Absent evidence to the contrary, we will assume that Vargas carried out the
necessary investigations, see Strickland, 466 U.S. at 690, an assumption that is corroborated by
Vargas’s statement during the hearing that he had “addressed every one” of Pough’s earlier concerns
regarding his guilty plea.
        In addition, Pough unrealistically overestimates the relief that Vargas could have obtained
for him had Vargas convinced the district court to withdraw the guilty plea on the basis of Johnson’s
actions. Pough argues that Vargas could have “raised the claim against Johnson to reinstate the first
plea of 14 years and pave the way for the government to request a Rule 35 motion from the district
court.” But by the time Vargas entered the fray, the government was well aware of the state’s
having charged Pough with the McMillan murder, and it was no longer willing to offer Pough a plea
bargain that did not account for the murder as relevant conduct. Vargas, therefore, did not act
unreasonably in failing to raise Pough’s unsubstantiated allegations that Johnson had rendered
ineffective assistance during the plea negotiations.
        Finally, the present case is not one in which defense counsel failed to transmit to the
defendant a plea offer by the government, failed to explain to the defendant the potential length of
his sentence if he proceeded to trial, or failed to inform the defendant of parole eligibility. See
Griffin v. United States, 330 F.3d 733, 738-39 (6th Cir. 2003) (holding that defense counsel
performed deficiently by not informing the defendant of the government’s plea offer, and remanding
for an evidentiary hearing on the prejudice prong); Smith v. United States, 348 F.3d 545, 553-54 (6th
Cir. 2003) (remanding for an evidentiary hearing where the record was unclear as to whether counsel
adequately informed the defendant of the consequences of going to trial); Sparks v. Sowders, 852
F.2d 882, 885 (6th Cir. 1988) (holding “that gross misadvice concerning parole eligibility can
amount to ineffective assistance of counsel”). To the contrary, Pough’s two attorneys in question,
and Johnson in particular, promptly transmitted to Pough the government’s plea offers, coordinated
a global plea agreement with his state-appointed counsel, and ultimately obtained for Pough what
can be described only as an immensely favorable deal under the circumstances. Pough received
concurrent federal and state sentences, and will spend the entire 17-year term of his sentence in
federal prison, instead of spending approximately 14 years in federal prison and then facing either
a death sentence or a lengthy term of incarceration in state prison. Because neither Johnson nor
Vargas performed below an objective standard of reasonableness, we need not reach Strickland’s
prejudice prong.
D.     The district court correctly determined that Pough’s appellate counsel
       did not render ineffective assistance
        Pough next contends that his appellate counsel, Richard Lillie, rendered ineffective
assistance, an argument that we find to be without merit. To start with, Pough’s plea agreement
waived his right to appeal his sentence unless that sentence was beyond the statutory maximum, and
he acknowledged his waiver of that right during the sentencing hearing. Despite the plea
agreement’s waiver of appellate rights, Pough proceeded to file an appeal, and Lillie was appointed
by the district court to represent him. This court then authorized Lillie to withdraw after Lillie filed
an acceptable Anders brief, to which Pough had a chance to respond.
        Pough’s primary argument is that Lillie provided ineffective assistance by failing to argue
on direct appeal that the government and the state of Ohio had breached the federal plea agreement
by using Pough’s statements to implicate him in the McMillan murder. As the district court
correctly concluded, however, this court on direct appeal would not have had the authority to vacate
Pough’s state-court conviction. Indeed, even had this court agreed with Pough that his
No. 04-3863           Pough v. United States                                                   Page 8


federal conviction and sentence needed to be reversed, that judgment would have left the state-court
judgment intact. Pough would have had to attack this latter judgment through a petition for a writ
of habeas corpus under 28 U.S.C. § 2254. See Smith v. United States, 262 F.3d 537, 540 (6th Cir.
2001) (requiring a § 2255 petitioner challenging sentencing enhancements imposed because of state
convictions to challenge those convictions either in state court or under § 2254); see also Singleton
v. Norris, 319 F.3d 1018, 1023 (8th Cir. 2003) (en banc) (“[Section] 2254 is the only means by
which ‘a person in custody pursuant to the judgment of a State court’ may raise challenges to the
validity of his conviction or sentence or to the execution of his sentence.”).
        This court’s decision in Warner v. United States, 975 F.2d 1207 (6th Cir. 1992), is not to the
contrary. In Warner, the defendant challenged two guilty pleas that he had entered within a ten-day
period, one in state court and the other in federal court. Warner argued that the ineffective
assistance he had allegedly received from his trial counsel prevented him from understanding the
sentences to which he was subjected, so that his pleas in both cases were involuntary. Id. at 1209-
10. The district court granted relief as to Warner’s state-court convictions, but denied relief on the
federal convictions. This court affirmed. In doing so, the court acknowledged that it had
jurisdiction over Warner’s two separate claims under § 2254 and § 2255. Id. at 1208. That is, the
federal courts could grant Warner relief on his state-court guilty plea only because he had filed a
petition for habeas corpus pursuant to § 2254. See id. at 1214-15. The Warner decision, therefore,
actually supports Lillie’s refusal to argue on direct appeal before this court that Pough’s guilty plea
in the Ohio state court should have been vacated due to an alleged breach of the plea agreement.

        Moreover, Lillie reasonably concluded that Pough could produce no facts to support his
allegation that the federal and state governments had duped him into providing the only evidence
that could link him to the McMillan murder. Although the record is somewhat meager on this point,
the correspondence provided by the parties indicates that Assistant U.S. Attorney Becker responded
to Pough’s concerns in a letter to Johnson dated January 31, 2000. Becker assured Johnson that the
majority of the facts underlying the charges against Pough were known prior to his arrest, and that
statements made during the proffer did nothing more than lead to derivative evidence that
“substantiated what the investigation previously produced.” Because Pough has offered no
information to contradict the government’s characterization of the relevant evidence, Lillie did not
act in an objectively unreasonable manner for refusing to raise this claim.
E.     Pough’s appointed counsel before this court
        Although we appreciate our dissenting colleague’s concern with the performance of the
attorney appointed to represent Pough before this court, we respectfully disagree with his
characterization of counsel’s actions and with his ultimate conclusion that Pough has been
prejudiced. Faced with a barrage of questions at oral argument, Pough’s appointed counsel informed
the court that Pough had demanded that counsel proceed in the manner described in the dissent—that
is, permitting Pough to take the lead role in drafting his appellate brief. Counsel explained that he
had received a “great number of telephone calls and letters” from Pough, and that he normally did
not have clients “quite as insistent as Mr. Pough.”
        The record bears out counsel’s description. First, the record indicates that present counsel
is the sixth attorney to represent Pough in the past six years. We do not pass judgment on the
wisdom or propriety of these changes in counsel, but do note that such decisions reflect a pattern of
Pough’s dissatisfaction with his legal representatives and their approach to his case. The record also
contains examples of Pough’s frequent letters to his court-appointed counsel on direct appeal, from
whom Pough repeatedly requested affidavits and interview notes that simply did not exist. These
documents lend credibility to counsel’s description of Pough as an insistent, strong-willed client who
desired to micromanage the actions being taken on his behalf.
No. 04-3863           Pough v. United States                                                  Page 9


        So insistent was Pough in controlling his own case that he filed a motion on April 25, 2005
to dismiss his court-appointed counsel and proceed pro se in the present appeal. This court denied
that motion, notwithstanding Pough’s success at the district-court level, where he had convinced the
court to accept his § 2255 motion despite the government’s argument that it was untimely. In our
view, all of these factors confirm that Pough obtained the legal assistance that he desired and that
he received constitutionally sufficient aid from his court-appointed attorney.
        Most importantly, we do not believe that counsel’s acquiescence in Pough’s preferred course
of action has prejudiced Pough. Counsel was asked at oral argument whether, if he had
independently examined the record and identified the issues from the outset, he would have made
additional arguments not contained in the briefs that we received. He replied that he would not have.
Moreover, and lest there be any doubt on this point, counsel did far more in this appeal than simply
format the briefs and appear for oral argument. Pough’s primary and reply briefs are not, as the
dissent appears to argue, devoid of citations to the relevant authorities, or an unorganized series of
factual arguments. To the contrary, many of the authorities that we have cited in the preceding
pages, and almost all of the arguments that we have rejected, are ones that were made in the two
appellate briefs and were supported by citation to relevant statutes and cases.
        Defense counsel also supplemented the briefs by providing this court, pursuant to Rule 28(j)
of the Federal Rules of Appellate Procedure, updated citations prior to oral argument. Under these
circumstances, we disagree with the dissent’s assessment that counsel “has abdicated his duties as
Petitioner’s legal representative,” and conclude that, even if defense counsel misunderstood his role
and should not have adapted his performance to the wishes of his client, counsel’s conduct has
neither prejudiced Pough nor impugned the appellate process. We also disagree, needless to say,
with the dissent’s characterization of our opinion as “startling,” “audacious,” “irrelevant,”
“puzzling,” “a sham,” “inexplicable,” and as creating a “bait and switch scenario.” These words,
in our humble opinion, turn far more heat than light on the issues before us.
F.     Publication of opinion
        Finally, we disagree with our dissenting colleague’s decision to have this opinion published.
After oral argument, Pough filed a pro se motion asking this court not to publish the disposition of
his appeal. He expressed in that motion fear that his “status” as a cooperating witness “will be
revealed and put [him] in danger in this prison.” Given the serious and violent criminal activities
in which Pough was admittedly involved, we took his concerns at face value and were prepared to
resolve the straightforward merits of his appeal in an unpublished opinion that, although available
to those with access to online resources or law libraries, would not have appeared in the Federal
Reporter. We continue to believe that the potential risk to Pough’s safety outweighs the necessity
of airing the disagreement among the members of this panel about whether Pough’s appointed
counsel acted so ineffectively as to deprive us—and Pough—of the resources necessary to properly
decide this case.
                                       III. CONCLUSION
       For all of the reasons set forth above, we AFFIRM the judgment of the district court.
No. 04-3863            Pough v. United States                                                    Page 10


                                          ________________
                                              DISSENT
                                          ________________
        CLAY, Circuit Judge, dissenting. It is entirely inappropriate to reach the merits of
Petitioner’s case when this Court knows full well that Petitioner’s court-appointed counsel has
abdicated his duties as Petitioner’s legal representative. Counsel admitted as much in briefs to this
Court, during oral arguments, and again in a letter to the panel.
          This Court ordered appointment of counsel to assist Petitioner in his appeal to this Court of
the district court’s refusal to vacate or set aside his convictions and sentence pursuant to 28 U.S.C.
§ 2255. Attorney Spiros Cocoves was thereby appointed in March 2005; counsel’s appointment was
pursuant to the Criminal Justice Act, 18 U.S.C. § 3006A et seq. See Janice E. Yates, Chief Deputy
Clerk, Letter to Spiros P. Cocoves, March 4, 2005 (“Thank you for accepting the court’s
appointment to represent petitioner . . . . [T]he court appreciates your undertaking to provide the
representation afforded by the Criminal Justice Act . . . .”). This appointment is understood to create
the usual attorney-client relationship between counsel and the indigent petitioner, with all the ethical
considerations and duties of representation attendant thereto. See Ferri v. Ackerman, 444 U.S. 193,
205 (1979) (“[T]he essential office of appointed defense counsel is akin to that of private counsel
. . . .”)
        Petitioner’s brief in this case conforms to the technical requirements of Sixth Circuit rules.
Significantly, however, the brief, although signed by counsel, is not a brief by counsel. Counsel
admitted as much in the brief itself. In footnote 1 on page 3 of Petitioner’s brief, counsel states that
“[t]he bulk of this brief has been prepared by [Petitioner], with counsel assisting to conform the brief
to the mandates of the federal appellate rules and this Court’s local rules.” (Pet’r Br. 3.) It is further
apparent from a reading of the brief that counsel formatted the brief, wrote a statement of the case,
and perhaps wrote the prefatory sections for summary of argument and standard of review. The
argument section, however; was apparently not prepared by counsel. The argument section proceeds
in a pro se fashion, with very little legal structure and analysis.
         Counsel for Petitioner further admitted his abdication of his role as Petitioner’s attorney
during oral arguments to this Court. Counsel stated that he did not substantively draft the brief but
“reviewed what [Petitioner] said against the record” and “made sure that the claims that [Petitioner]
advanced were proper.” Oral Arguments Before the Sixth Circuit, No. 04-3863, Feb. 1, 2006.
Surely this is not the advocacy involving independent professional judgment which we demand of
counsel when claims are, at minimum, nonfrivolous, which counsel has admitted they are in the
instant case. Counsel admitted that this was “not the way I normally do things,” but excused himself
by stating that the order appointing Mr. Cocoves as counsel was somehow unusual or out of the
ordinary. Id. Counsel refers to the order granting Petitioner a certificate of appealability in this
matter, in which this Court stated that “counsel is hearby appointed to assist in the briefing of these
issues.” See Pough v. United States, No. 04-3863 (6th Cir. Jan. 12, 2005). Counsel inexplicably
argues that he interpreted this order as placing him in a role somewhat analogous to “standby
counsel” to Petitioner. Oral Arguments. Counsel repeated this contention after oral arguments in
a letter to the panel:
        Because the order did not state that counsel was to be appointed to represent Mr.
        Pough, I read the order to mean that my role was to ensure that all filings comported
        with the Court’s rules regarding format and that it otherwise present [sic] the issues,
        with Mr. Pough providing the bulk of the written work.
No. 04-3863            Pough v. United States                                                    Page 11


Spiros Cocoves, Letter to the Honorables Eric L. Clay, Ronald Lee Gilman, and James L. Ryan,
United States Court of Appeals for the Sixth Circuit, February 2, 2006.
         I have reviewed the order appointing counsel and found nothing unusual or different about
this order versus other orders from this Court appointing counsel under the Criminal Justice Act.
The order granting the certificate of appealability states that “counsel is hereby appointed to assist
in the briefing of these issues.” Pough v. United States, No. 04-3863 (6th Cir. Jan. 12, 2005).
Moreover, I have reviewed the letter sent from the Clerk’s office to Mr. Cocoves confirming his
appointment, which thanks counsel for “accepting the court’s appointment to represent the petitioner
. . . [under] the Criminal Justice Act.” Letter to Spiros P. Cocoves. Again, counsel’s appointment
was entirely standard. Surely, if counsel felt that the appointment was somehow unusual, counsel
had an affirmative obligation to request clarification or confirmation from this Court. Counsel
himself appears uncomfortable with his performance in this representation, stating during oral
argument that he “probably [has] more agreement than I should have with what the Court’s saying
[about his representation].” Oral Arguments.
        The majority opinion sets forth a rather startling and audacious Apologia for counsel’s totally
inadequate performance as a lawyer on Petitioner’s behalf — a performance which should perhaps
best be characterized as an “absence of performance.” The majority opinion jumps through all
manner of hoops in an attempt to obfuscate the obvious fact that Petitioner’s counsel has admitted,
on more than one occasion, and in writing, that he did not prepare Petitioner’s brief on appeal to this
Court but, on the contrary, merely formatted the brief drafted by Petitioner so that it would be in a
form acceptable for filing with the clerk’s office. The fact that Petitioner’s counsel subsequently
submitted a rule 28(j) letter, based not on counsel’s work but as a follow-up to a brief drafting
process in which counsel did not participate, except to format Petitioner’s pro se brief, does not in
the least mitigate counsel’s abdication of his professional responsibility.
        The majority opinion reflects a fundamental misunderstanding of the significance of the role
of counsel in our adversary process. Once this Court appointed counsel for Petitioner, Petitioner
was entitled to competent counsel who would represent Petitioner based upon an acceptable level
of independent judgment, professional skill, and diligence. The majority opinion seeks to excuse
counsel’s abdication of his role as Petitioner’s counsel based upon the irrelevant rationale that
Petitioner has had several attorneys represent him in the past and because the majority seems to
believe that letters from Petitioner to his prior counsel identify Petitioner as a difficult client. Based
upon the majority’s rationale, the quality of representation to which a person is entitled would
depend to some extent on that person’s personal characteristics as a client. Actually, none of the
things mentioned by the majority have anything to do with the issue of whether our panel should
have vacated attorney Cocoves’ appointment and appointed a new lawyer who would have actually
been willing and able to draft an appellate brief on Petitioner’s behalf. In fact, the majority, in its
anxiousness to excuse Petitioner’s counsel’s lack of performance, even engages in the puzzling
conjecture, without any factual basis or foundation, that “Pough obtained the legal assistance that
he desired.”
        Until and unless counsel approaches this Court to say that Petitioner has somehow prevented
counsel from doing his job, counsel has a professional obligation to lend his analytical skills and
legal knowledge, not just his formatting capabilities, to advance Petitioner’s arguments. Attorney
Cocoves’ own bar demands as much. See Ohio Code Prof. Resp. Ethical Canon 7-19 (“The duty of
a lawyer to his client and his duty to the legal system are the same: to represent his client zealously
within the bounds of the law.”) I believe that the circumstances surrounding counsel’s role are very
clear. By counsel’s own admission, counsel had little role in preparing Petitioner’s brief and
framing Petitioner’s arguments on appeal. Until and unless counsel makes a motion to this Court
asking to be relieved of his responsibilities as counsel of record, counsel is under a professional
obligation to advance Petitioner’s arguments. To file and sign a brief with this Court which admits
No. 04-3863           Pough v. United States                                                  Page 12


on its face that counsel did little more than format the brief belies counsel’s duty as an attorney,
violates Court rules and canons of ethics, and undermines this Court’s authority. It was this Court,
after all, which appointed counsel in the first instance.
        I acknowledge that Petitioner is not constitutionally entitled to assistance of counsel on
habeas. See generally Coleman v. Thompson, 501 U.S. 722, 756 (1991). Yet this Court routinely
appoints counsel in such cases where the Court determines that the assistance of counsel would aid
the Court in its decision-making. Having made the determination to appoint counsel, the majority
is wrong to convert the Court’s decision-making process into a sham and now conclude that it can
decide the merits of this case without Petitioner being afforded the assistance of counsel. By doing
so, the majority is, in essence, contradicting a prior order of this Court. See Pough v. United States,
No. 04-3863 (6th Cir. Jan. 12, 2005).
        I also believe that this Court is proceeding with neither a brief by counsel nor a proper pro
se brief by Petitioner. From the materials before this Court, it is not apparent that Petitioner was on
notice that he was acting as his own counsel. Normally, when a petitioner represents himself pro
se before this Court, there is no doubt that the petitioner and petitioner alone is responsible for the
quality of legal argument on appeal. Here, the odd sort of relationship envisioned by Mr. Cocoves
does not appear to place Petitioner on notice that his briefing of the legal issues would be the end
game, i.e., that his attorney would not lend his legal knowledge and capabilities, as well as his
independent professional judgment, to properly framing Petitioner’s issues on appeal. It hardly
appears just to say to Petitioner, as this Court has, “We have appointed you counsel to help you in
your appeal, you do not have to proceed pro se” and then, when counsel fails to perform, turn around
and say, as the majority does, “Never mind, your argument fails anyway, even though you were not
on notice that you were representing yourself.” Even without the constitutional right to counsel on
habeas, the “bait and switch” scenario created by the majority in this case certainly appears violative
of due process.
        Finally, the majority opinion expresses disagreement with the decision to have this opinion
published on the questionable basis that Petitioner wrote a letter claiming that his safety in prison
might be jeopardized by a published opinion. We as a Court do not make publication decisions, or
indeed any decisions concerning the internal operations of the Court, based upon the unsupported
and unsubstantiated allegations of an incarcerated prisoner. Interestingly, the majority, earlier in
its opinion, itself rejects certain representations of Petitioner on the purported basis that “Pough
could produce no facts to support his allegations.” Although the majority would have us accept at
face value Petitioner’s representations concerning his safety, the majority opinion repeatedly
questions Petitioner’s veracity and credibility in discussing the allegations Petitioner has raised in
connection with the merits of his appeal. It would be quite another thing had a prison official or a
legitimate law enforcement official represented to the Court that Petitioner’s safety might be
jeopardized or asked that an opinion of this Court not be published for some reason that such
officials regarded as credible. Tellingly, the majority opinion does not claim that any legitimate
prison official or law enforcement official has ventured the opinion that publication in the instant
case would jeopardize Petitioner’s safety. It would be quite an oddity if this Court should begin to
govern its decisions based solely on the unverified and unverifiable representations of incarcerated
prisoners.
        I would remove counsel of record, appoint new counsel, and reschedule this case for briefing
and oral argument. That would be the only course of action consistent with the interests of
Petitioner and this Court, both in requiring Petitioner to be adequately represented (as the Court has
already determined, under prior order, that this case merits representation by counsel) and in
sustaining our own authority as a Court. This Court should not countenance an admitted lack of
representation when this Court has ordered otherwise. The majority’s insistence on proceeding with
this case under these circumstances is truly inexplicable. Because the majority insists on reaching
No. 04-3863          Pough v. United States                                               Page 13


the merits of this case without Petitioner receiving the assistance of counsel which this Court saw
fit to appoint, I must dissent.
