           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                     2    Smith v. United States                       No. 01-5215
        ELECTRONIC CITATION: 2003 FED App. 0387P (6th Cir.)
                    File Name: 03a0387p.06                             STATES ATTORNEY, Lexington, Kentucky, for Appellee.
                                                                       ON BRIEF: Cheryl J. Sturm, Chadds Ford, Pennsylvania,
                                                                       for Appellant. Charles P. Wisdom, Jr., ASSISTANT
UNITED STATES COURT OF APPEALS                                         UNITED STATES ATTORNEY, Lexington, Kentucky, for
                                                                       Appellee.
                  FOR THE SIXTH CIRCUIT
                    _________________                                                      _________________

 EDDIE D. SMITH,                  X                                                            OPINION
          Petitioner-Appellant, -                                                          _________________
                                   -
                                   -   No. 01-5215                       DAVID M. LAWSON, District Judge. The petitioner
            v.                     -                                   appeals the denial of his motion to vacate sentence filed under
                                    >                                  28 U.S.C. § 2255. He was convicted by a jury of several
                                   ,                                   counts of sexual misconduct perpetrated against female
 UNITED STATES OF AMERICA , -
         Respondent-Appellee. -                                        inmates at a federal prison while he was employed at the
                                                                       facility as a prison guard. He also was found guilty of lying
                                  N                                    during a hearing into his misconduct before the Merit
      Appeal from the United States District Court                     Systems Protection Board. The principal ground for Smith’s
    for the Eastern District of Kentucky at Lexington.                 motion is that his attorney was constitutionally ineffective
  No. 99-00086—Karl S. Forester, Chief District Judge.                 because he failed to properly advise and counsel Smith
                                                                       concerning a pretrial guilty plea offer made by the
                    Argued: March 12, 2003                             government that would have resulted in a sentence
                                                                       considerably shorter than the 262 months Smith ultimately
            Decided and Filed: November 3, 2003                        received. We believe that the factual record before the district
                                                                       court is not sufficient to properly adjudicate the motion. We
 Before: MOORE and CLAY, Circuit Judges; LAWSON,                       therefore vacate the lower court’s judgment and remand for
                 District Judge.*                                      an evidentiary hearing.

                      _________________                                                               I.

                           COUNSEL                                       On April 20, 1995, a federal grand jury sitting in the
                                                                       Eastern District of Kentucky returned a multi-count
ARGUED: Cheryl J. Sturm, Chadds Ford, Pennsylvania, for                indictment against petitioner Eddie D. Smith. A superseding
Appellant. John Patrick Grant, ASSISTANT UNITED                        indictment was handed down on August 16, 1995, which
                                                                       charged Smith with eight counts of sexual misconduct and
                                                                       one count of perjury. Counts one through five alleged that
    *
                                                                       Smith engaged in sexual acts by force with four different
     The Honorable David M. Lawson, United States District Judge for   inmates while he was employed as a correctional officer at the
the Eastern D istrict of M ichigan, sitting by de signation.

                                 1
No. 01-5215                      Smith v. United States     3    4    Smith v. United States                       No. 01-5215

Federal Medical Center (FMC) in Lexington, Kentucky, all in      months imprisonment on count six, with three months of
violation of 18 U.S.C. § 2241(a)(1). Counts six and seven        supervised release; six months imprisonment on count eight,
charged that Smith engaged in sex acts with one of the           with three years of supervised release; and sixty months
previously-named inmates while she was under his authority,      imprisonment on count nine, with three years of supervised
contrary to 18 U.S.C. § 2243(b). Count eight alleged that        release. Count four was dismissed on the government’s
Smith engaged in sexual contact with yet a different inmate      motion. The sentences were all to be served concurrently.
while she was officially detained and under his supervision in   We affirmed Smith’s convictions on direct appeal on
violation of 18 U.S.C.§ 2244(a)(4). Finally, count nine          March 20, 1998 in an unpublished opinion. United States v.
alleged that, on or about January 12, 1994, Smith gave false     Smith, No. 96-5385, 1998 WL 136564 (6th Cir. Mar. 19,
material testimony under oath before United States               1998).
Administrative Law Judge Jack E. Salyer, during a Merit
Systems Protection Board proceeding concerning the removal         On March 5, 1999, the petitioner filed a motion seeking to
of Smith from his position as a correctional officer at the      vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
Lexington Medical Center, contrary to 18 U.S.C. § 1621.          § 2255. In the motion Smith alleges that defense counsel was
                                                                 ineffective for failing to advise him to accept the twenty-
   At his arraignment, Smith was represented by the same         month guilty plea agreement offered by the government, and
attorney that had appeared for him at the prior proceeding       for failing to interview and call as a defense witness a FMC
before the Merit Systems Protection Board in which Smith         inmate who would have testified that the government’s
was removed from his job with the Bureau of Prisons on           witnesses fabricated the stories about Smith. Smith further
account of the same misconduct that led to his indictment.       contended in the motion that his convictions violated the Fifth
Smith contends, and the government does not dispute, that        Amendment’s prohibition against double jeopardy.
sometime before the indictment was returned, the prosecution
offered to allow Smith to plead guilty to a one-count              The government responded to the motion on April 20,
information charging perjury with a maximum recommended          1999, attaching an affidavit of attorney Stephens. The
sentence of twenty months, in exchange for abandoning the        affidavit states that Stephens’ conversations with predecessor
prosecution of the sexual misconduct offenses. Smith did not     counsel indicated that Smith was aware, prior to the filing of
accept that offer. About one month after his arraignment, his    the indictment, that an offer was on the table for a guilty plea
lawyer withdrew and attorney Andrew M. Stephens was              to the perjury charge. Stephens Aff. at 1, J.A. at 69. The
appointed to represent Smith. Stephens avers that the guilty     affidavit further states that “Mr. Smith had been fully active
plea offer remained open until approximately ten days before     in participation of the pension denial hearings and his
trial.                                                           potential wrongful termination. It is also relevant to the
                                                                 undersigned that Mr. Smith’s wife accompanied him on every
  Trial commenced on September 25, 1995. Smith testified         office conference, discovery conference, and discovery
on his own behalf, and maintained his innocence of the           investigation conference of which there were at least fifteen
charges. However, the jury convicted Smith as charged on all     or twenty.” Ibid. “At no time,” Stephens insists, “during the
counts but count seven, for which he was found not guilty.       course of lengthy investigations, review of literally reams of
On March 8, 1996, Smith was sentenced to multiple terms of       documents and travel between various Federal Correctional
262 months imprisonment on counts one, two, three and five,      Institutions accomplished by the undersigned in investigation
with thirty-six months of supervised release to follow; twelve   and defense of this case, did Mr. Smith ever consider the
No. 01-5215                       Smith v. United States      5    6    Smith v. United States                       No. 01-5215

entry of a guilty plea.” Stephens Aff. at 2, J.A. at 70. The       would have pleaded guilty even if he had received proper
affidavit speculates that “Smith at some point was attempting      advice from his attorney. Ibid. The district court also
to save face in front of his wife during the pendency of their     rejected Smith’s claim that Stephens was ineffective for
marriage and thus, that maybe [sic] the motivation for his         failing to interview a witness, and that prosecuting Smith
denial of any desire to entry [sic] a guilty plea.” Ibid.          following the administrative job-removal proceedings
Stephens also states, somewhat cryptically, that “[i]t would be    violated the Double Jeopardy Clause.
incorrect for Mr. Smith to assert that their [sic] wasn’t some
talk of a guilty plea since the offer was made and held open         The district court’s judgment against the petitioner was
by the United States until approximately ten days before           timely appealed on February 5, 2001. The issues raised relate
trial.” Ibid.                                                      only to the question of whether Stephens’ advice to Smith
                                                                   concerning the government’s guilty plea offer was
  The evidence against Smith, Stephens insists, was                constitutionally adequate, and whether the district court erred
overwhelming. He further states that he prepared with Smith        by not conducting an evidentiary hearing to resolve that
more than he has with any other client. When the guilty plea       question.
offer was discussed, “it was discussed with disgust.”
Stephens Aff. at 4, J.A. at 72. There was no doubt in his                                        II.
mind, Stephens states, that Smith “never considered a plea
though a plea was discussed.” Stephens Aff. at 3-4, J.A. at          On appeal of the district court’s denial of a motion to
71-72. “[N]ever ever was undersigned counsel directed to           vacate, alter, or amend sentence pursuant to 28 U.S.C. § 2255,
explore negotiated plea offers even though same was made.”         we review the lower court’s legal conclusions de novo and its
Stephens Aff. at 3, J.A. at 71.                                    factual findings for clear error. Nagi v. United States, 90 F.3d
                                                                   130, 134 (6th Cir. 1996). The district court’s decision
  On March 28, 2000, Magistrate Judge James B. Todd filed          whether to hold an evidentiary hearing on a Section 2255
a report recommending that the motion be denied. After             motion is reviewed under the abuse of discretion standard.
considering the petitioner’s exceptions to that report, and the    Arredondo v. United States, 178 F.3d 778, 782 (6th Cir.
government’s response to those exceptions, the district court      1999).
adopted the report in an Opinion and Order filed January 11,
2001. No evidentiary hearing was conducted in the lower              A prisoner who files a motion under Section 2255
court. The district court denied the motion on the ground that     challenging a federal conviction is entitled to “a prompt
the petitioner had failed to show prejudice as required by         hearing” at which the district court is to “determine the issues
Strickland v. Washington, 466 U.S. 668, 694 (1984), because        and make findings of fact and conclusions of law with respect
there was no “objective evidence in the record demonstrating       thereto.” 28 U.S.C. § 2255. The hearing is mandatory
a reasonable probability that, but for his counsel’s lack of       “unless the motion and the files and records of the case
advice, he would have accepted the government’s offer.”            conclusively show that the prisoner is entitled to no relief.”
Opinion and Order at 3; J.A. at 112. The district court            Fontaine v. United States, 411 U.S. 213, 215 (1973) (citation
reasoned that Smith was aware of the government’s offer and        omitted). See also Blanton v. United States, 94 F.3d 227, 235
rejected it, and instead protested his innocence at trial (which   (6th Cir. 1996) (holding that “evidentiary hearings are not
resulted in a two-point offense level enhancement for              required when . . . the record conclusively shows that the
obstruction of justice), and therefore it was unlikely that he     petitioner is entitled to no relief.”). The statute “does not
No. 01-5215                        Smith v. United States       7    8      Smith v. United States                     No. 01-5215

require a full blown evidentiary hearing in every instance . . . .       The second, or “prejudice,” requirement . . . focuses on
Rather, the hearing conducted by the court, if any, must be              whether counsel's constitutionally ineffective
tailored to the specific needs of the case, with due regard for          performance affected the outcome of the plea process. In
the origin and complexity of the issues of fact and the                  other words, in order to satisfy the “prejudice”
thoroughness of the record on which (or perhaps, against                 requirement, the defendant must show that there is a
which) the section 2255 motion is made.” United States v.                reasonable probability that, but for counsel’s errors, he
Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993). Furthermore,                would not have pleaded guilty and would have insisted
“when the trial judge also hears the collateral proceedings . . .        on going to trial.
that judge may rely on his recollections of the trial in ruling
on the collateral attack.” Blanton, 94 F.3d at 235 (citing           Hill v. Lockhart, 474 U.S. 52, 59 (1985).
Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977)). However,
“[w]here there is a factual dispute, the habeas court must hold         In this case, the trial court summarily rejected Smith’s
an evidentiary hearing to determine the truth of the                 ineffective assistance of counsel claim for failure of proof on
petitioner's claims.” Turner v. United States, 183 F.3d 474,         this second element. The lower court found that a defendant’s
477 (6th Cir. 1999) (citing Paprocki v. Foltz, 869 F.2d 281,         “own self-serving testimony” that he would have pleaded
287 (6th Cir.1989)). We have observed that a Section 2255            guilty if properly advised is not sufficient; in addition, the
petitioner’s burden “for establishing an entitlement to an           lower court required that the defendant also present “objective
evidentiary hearing is relatively light.” Id. at 477.                evidence” to establish prejudice. Opinion and Order at 3; J.A.
                                                                     at 112. However, we recently stated: “Although some circuits
   Here, Smith seeks a hearing on the question of whether his        have held that a defendant must support his own assertion that
attorney was constitutionally ineffective. Such claims are           he would have accepted the offer with additional objective
guided by the now familiar two-element test set forth by the         evidence, we in this circuit have declined to adopt such a
Supreme Court in Strickland v. Washington, 466 U.S. 668              requirement.” Griffin v. United States, 330 F.3d 733, 737
(1984). First, a petitioner must prove that counsel’s                (6th Cir 2003) (quoting Dedvukovic v. Martin, 36 Fed.Appx.
performance was deficient, which “requires showing that              795, 798 (6th Cir.2002) (unpublished)).
counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the            The district judge in this case, who also presided over
Sixth Amendment.” Id. at 687. The Court explained that to            Smith’s trial, found that Smith was aware of the plea offer,
establish deficient performance, a petitioner must identify acts     rejected it, and maintained his innocence throughout the
that were “outside the wide range of professionally competent        proceedings, including to the point of testifying under oath at
assistance.” Id. at 690. Second, a petitioner must show that         trial that he did not engage in the conduct described by his
counsel’s deficient performance prejudiced the petitioner. A         accusers, which earned him a two-point enhancement of his
petitioner may establish prejudice by “showing that counsel’s        offense level for obstruction of justice at sentencing. This
errors were so serious as to deprive the defendant of a fair         point was addressed in Griffin as well, where we observed
trial.” Id. at 687.                                                  that defendants may enter a guilty plea while maintaining
                                                                     innocence under North Carolina v. Alford, 400 U.S. 25, 33
  The Supreme Court has applied this test to evaluate the            (1970) (stating that “reasons other than the fact that he is
performance of attorneys representing guilty-pleading                guilty may induce a defendant to so plead . . . and he must be
defendants, with special attention to the second element:            permitted to judge for himself in this respect”); many
No. 01-5215                        Smith v. United States       9    10   Smith v. United States                      No. 01-5215

defendants believe that they must maintain innocence right up        seventeen-and-a-half years the defendant did receive was
to the point of pleading guilty in order to fortify their            objective evidence that a plea would have been accepted).
bargaining positions; and the Fifth Amendment gives
defendants the right to assert their innocence throughout a             In this case, the petitioner concedes that he was aware of
trial. Griffin, 330 F.3d at 738. We concluded, therefore, that       the government’s guilty plea offer. However, citing Boria v.
it “does not make sense to say that a defendant’s protestations      Keane, 99 F.3d 492 (2d Cir. 1996), Smith contends that his
of innocence belie his later claim that he would have accepted       attorney was ineffective because, in light of the overwhelming
a guilty plea. . . . These declarations of innocence are . . . not   evidence of guilt, the attorney did not insist that Smith plead
dispositive on the question.” Ibid. Protestations of innocence       guilty and accept the twenty-month plea bargain. We do not
throughout trial are properly a factor in the trial court’s          believe this to be a proper basis upon which to find deficient
analysis, however they do not, by themselves, justify                performance by defense counsel. The decision to plead guilty
summary denial of relief without an evidentiary hearing. See         – first, last, and always – rests with the defendant, not his
Cullen v. United States, 194 F.3d 401, 404-07 (2d Cir. 1999).        lawyer. Although the attorney may provide an opinion on the
                                                                     strength of the government’s case, the likelihood of a
   In Griffin, there was no dispute over the fact that the           successful defense, and the wisdom of a chosen course of
petitioner’s trial counsel failed to convey a pretrial guilty plea   action, the ultimate decision of whether to go to trial must be
offer, and that the petitioner proceeded to trial, where he          made by the person who will bear the ultimate consequence
testified that he was innocent. The panel noted that the             of a conviction.
substantial disparity between the five-year sentence offered
by the government and the 156 months Griffin ultimately                On the other hand, the attorney has a clear obligation to
received was enough to warrant further exploration of the            fully inform her client of the available options. We have held
issue at an evidentiary hearing of the question of the               that the failure to convey a plea offer constitutes ineffective
reasonable likelihood that Griffin, competently advised,             assistance, see Griffin, 330 F.3d at 734, but in the context of
would have pleaded guilty. Griffin, 330 F.3d at 739. Other           the modern criminal justice system, which is driven largely by
panels in this and other circuits have pointed to the disparity      the Sentencing Guidelines, more is required. A criminal
between the plea offer and the potential sentence exposure as        defendant has a right to expect at least that his attorney will
strong evidence of a reasonable probability that a properly          review the charges with him by explaining the elements
advised defendant would have accepted a guilty plea offer,           necessary for the government to secure a conviction, discuss
despite earlier protestations of innocence. See Magana v.            the evidence as it bears on those elements, and explain the
Hofbauer, 263 F.3d 542, 552-53 (6th Cir. 2001) (finding the          sentencing exposure the defendant will face as a consequence
difference between a ten- and twenty-year sentence                   of exercising each of the options available. In a system
significant); United States v. Day, 969 F.2d 39 (3d Cir. 1992)       dominated by sentencing guidelines, we do not see how
(finding ineffective assistance of counsel when trial counsel        sentence exposure can be fully explained without completely
mistakenly described the penalties at trial as ten years rather      exploring the ranges of penalties under likely guideline
than the twenty-two years the defendant received at                  scoring scenarios, given the information available to the
sentencing, and where a plea offer of five years had been            defendant and his lawyer at the time. See United States v.
made); United States v. Gordon, 156 F.3d 376, 377-81 (2d             Day, 969 F.2d 39, 43 (3d Cir. 1992) (observing that “the
Cir. 1998) (holding that the wide disparity between the ten-         Sentencing Guidelines have become a critical, and in many
year sentence recommended by the plea agreement and the              cases, dominant facet of federal criminal proceedings” such
No. 01-5215                       Smith v. United States      11    12   Smith v. United States                     No. 01-5215

that “familiarity with the structure and basic content of the       our view, was necessary for a proper consideration of the
Guidelines (including the definition and implications of            guilty plea offer – was ever conveyed to Smith before trial.
career offender status) has become a necessity for counsel
who seek to give effective representation.”). The criminal             The failure of defense counsel to “provide professional
defendant has a right to this information, just as he is entitled   guidance to a defendant regarding his sentence exposure prior
to the benefit of his attorney’s superior experience and            to a plea may constitute deficient assistance.” Moss v. United
training in the criminal law.                                       States, 323 F.3d 445, 474 (6th Cir. 2003). See also Magana,
                                                                    263 F.3d at 550 (holding that the defense counsel’s erroneous
  The record in this case leaves us in considerable doubt over      advice concerning sentence exposure “fell below an objective
the nature and quality of the advice Smith received before he       standard of reasonableness under prevailing professional
made his final decision to reject the government’s proposed         norms”); Day, 969 F.2d at 43 (holding that incorrect advice
plea bargain. Attorney Stephens’ affidavit states that Smith        about sentence exposure as a potential career offender
was aware of a plea offer, and that Smith was predisposed           undermined the defendant’s ability to make an intelligent
against a plea to save face in front of his wife, but it does not   decision about whether to accept a plea offer). Whether the
state that Stephens actually discussed the terms of the             petitioner had this information before he rejected the plea
agreement with Smith. More importantly, the affidavit does          offer is also an important factor in the consideration of the
not state that Stephens informed Smith of the dramatically          reasonable likelihood that a properly counseled defendant
higher sentence potential (over ten times as much                   would have accepted the government’s guilty plea offer.
incarceration) to which Smith was exposed if he were
convicted of even one of many charges. The affidavit does              Smith should have been given the opportunity at an
not claim that Stephens at any time expressed to Smith how          evidentiary hearing to develop a record on these factual
unlikely he was to prevail at trial.                                issues in the lower court.

   Stephens stated in his affidavit that Smith “knew by virtue                                    III.
of letters sent from [Stephens] to him possibility [sic] of the
steep sentence which he ultimately got.” Stephens Aff., J.A.          The petitioner asks that the matter be remanded to a
at 71. However, the only such correspondence in the record          different judge to preserve the appearance of fairness.
came from Stephens after the trial. In his October 17, 1995         Although we have the authority to grant that request under 28
letter, Stephens wrote to Smith: “I wanted to formally advise       U.S.C. § 2106, it is an “extraordinary power and should be
you of what I believe the relevant sentencing guideline             rarely invoked.” Armco, Inc. v. United Steelworkers of
provisions are and to confirm with you the substance of my          America, AFL-CIO, Local 169, 280 F.3d 669, 683 (6th Cir.
meeting with [the probation officer] and to give you your           2002) (citation omitted). The factors that we consider are
various options at this point.” Letter of Oct. 17, 1995 from        “(1) whether the original judge would reasonably be expected
Stephens to Smith, J.A. at 105. There is no reference in the        to have substantial difficulty in putting out of his mind
letter to earlier conversations or to pretrial discussions of the   previously expressed views or findings; (2) whether
sentencing potential in the case. There is no other evidence        reassignment is advisable to preserve the appearance of
that Smith’s sentencing exposure upon conviction of the             justice; and (3) whether reassignment would entail waste and
charges in the superseding indictment – information that, in        duplication out of proportion to any gain in preserving the
                                                                    appearance of fairness.” Sagan v. United States, 342 F.3d
No. 01-5215                       Smith v. United States     13

493, 501 (6th Cir. 2003) (citations omitted). See also Brown
v. Crowley, 312 F.3d 782, 791-92 (6th Cir. 2002).
  None of these factors support the request to remand this
case to a different district court judge. The record contains no
evidence that the district court judge would have difficulty
considering the case on remand in an objective manner. In
fact, he is probably in a superior position to evaluate the
claims, since he presided over Smith’s criminal trial. His
familiarity with the case is no evidence of a lack of propriety
or fairness, since, as we observed earlier, the habeas judge
may rely on his or her memory of the trial when relevant to
the issues on collateral review. See Blanton, 94 F.3d at 235.
To require a different district court judge to become familiar
with the factual and procedural history of this case would
waste judicial resources.
  For the foregoing reasons, we VACATE the judgment of
the district court denying the petitioner’s motion to vacate his
sentence under 28 U.S.C. § 2255, and REMAND to the
district court for an evidentiary hearing.
