     Case: 17-60440   Document: 00514881108        Page: 1   Date Filed: 03/20/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                    No. 17-60440                          FILED
                                                                    March 20, 2019
                                                                     Lyle W. Cayce
UNITED STATES OF AMERICA,                                                 Clerk

             Plaintiff - Appellee

v.

CALVIN ALLEN,

             Defendant - Appellant




                Appeal from the United States District Court
                  for the Southern District of Mississippi


Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.
JAMES C. HO, Circuit Judge:
      Our court previously granted a certificate of appealability (COA) to
Calvin Allen on two claims—first, that the government breached its obligations
under his plea agreement when it failed to credit his cooperation in a murder
conviction, and second, that Allen received ineffective assistance of counsel due
to his attorney’s failure to object to the government’s breach of his plea
agreement. We now conclude that the district court should have held an
evidentiary hearing on Allen’s ineffective counsel claim.         Accordingly, we
vacate the judgment and remand for a limited evidentiary inquiry.
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                                 No. 17-60440
                                       I.
      Allen pleaded guilty to one count of conspiracy to possess with intent to
distribute a controlled substance. In exchange for Allen’s plea and waiver of
the right to appeal, the government promised that it would:
      inform the United States Probation Office and the Court of [1] [the
      plea agreement], [2] the nature and extent of Defendant’s activities
      with respect to this case and [3] all other activities of Defendant
      which the U.S. Attorney deems relevant to sentencing, including
      the nature and extent of Defendant’s cooperation with the U.S.
      Attorney and law enforcement.

      Allen cooperated with prosecutors, providing them with information
about his co-conspirators in his drug case.     He also provided information
leading to the prosecution of an unrelated murder.
      The presentence report (PSR) included information about Allen’s
cooperation in the drug case, but not the murder. On appeal, Allen claims that
this omission constitutes a breach of the plea agreement by the government.
But Allen failed to identify any such breach to the district court: He did not
object to the PSR. Nor did he object during the sentencing hearing. The court
subsequently sentenced him to 188 months in prison and 5 years of supervised
release.
      Allen filed a timely pro se motion to vacate, set aside, or correct his
sentence under 28 U.S.C. § 2255, alleging that he received ineffective
assistance of counsel. He asserted that the plea agreement obligated the
government to inform the sentencing court about his cooperation in the murder
investigation, as well as the drug prosecution. And when the government
failed to do so, Allen contends that his counsel should have either objected or
moved for a downward departure in his sentence. In Allen’s view, this error
potentially deprived him of a lower sentence. He also requested an evidentiary
hearing on his claim under 28 U.S.C. § 2255(b).

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                                    No. 17-60440
      The district court ordered Allen’s attorney to respond to the allegations
of ineffective counsel.    Allen’s counsel averred that (1) he believed the
government discharged its obligation under the plea because the PSR included
information about Allen’s cooperation; and (2) he and Allen decided not to move
for a downward departure based on Allen’s cooperation because raising
mitigating circumstances would open the door to the court considering
aggravating circumstances.
      For its part, the government argued that (1) Allen procedurally defaulted
on any claim that the government violated its plea; and (2) Allen’s counsel was
not constitutionally ineffective.
      The district court denied Allen’s motion without an evidentiary hearing,
after concluding that (1) the government did not breach its plea obligations;
and (2) Allen’s ineffective assistance claim fails because his counsel’s failure to
object was merely a tactical decision.
      We subsequently granted a COA on two questions:
      (1) “[W]hether the district court erred in denying without an
      evidentiary hearing Allen’s claim that the Government breached
      the plea agreement by failing to disclose his cooperation regarding
      other criminal cases.”

      (2) “[W]hether the district court erred in denying without an
      evidentiary hearing Allen’s claim that he received ineffective
      assistance because his counsel failed to inform the sentencing
      court of the Government’s failure to disclose his cooperation
      regarding other criminal cases.”

      After the parties submitted their briefs, we requested additional briefing
on whether Allen procedurally defaulted on his claim that the government
breached its obligations under the plea agreement.
                                         II.
      Allen moved for § 2255 relief on the ground that the sentence was
imposed in violation of the Constitution.          28 U.S.C. § 2255(a).    See also
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                                  No. 17-60440
Strickland v. Washington, 466 U.S. 668, 686 (1984) (recognizing that
ineffective assistance of counsel violates the Sixth Amendment); United States
v. McDaniels, 907 F.3d 366, 370 (5th Cir. 2018) (“Where a defendant pleads
guilty based on a promise by the prosecutor, ‘breach of that promise taints the
voluntariness of his plea’ and offends the Fifth Amendment.”) (quoting Davis
v. Butler, 825 F.2d 892, 894 (5th Cir. 1987)). He also requests, at a minimum,
an evidentiary hearing on his claims under 28 U.S.C. § 2255(b).
      We review the district court’s denial of § 2255 relief de novo, and its
denial of an evidentiary hearing for abuse of discretion. See United States v.
Reed, 719 F.3d 369, 373 (5th Cir. 2013) (citing United States v. Edwards, 442
F.3d 258, 264 (5th Cir. 2006)). “A § 2255 motion requires an evidentiary
hearing unless either (1) the movant’s claims are clearly frivolous or based
upon unsupported generalizations, or (2) the movant would not be entitled to
relief as a matter of law, even if his factual assertions were true.” United States
v. Harrison, 910 F.3d 824, 826–27 (5th Cir. 2018) (citing United States v.
Guerra, 588 F.2d 519, 521 (5th Cir. 1979)).
      We conclude that Allen procedurally defaulted his breach of plea claim.
He is therefore only entitled to relief if he can succeed in his ineffective
assistance claim—either as “cause” sufficient to excuse his procedural default
on his breach of plea claim, or as an independent ineffective counsel infirmity.
We conclude that the district court erred by not holding an evidentiary hearing
or otherwise inquiring further into Allen’s ineffective counsel claim, because
the record does not “conclusively show” that that claim fails.          28 U.S.C.
§ 2255(b).




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                                       No. 17-60440
                                             A.
       Allen has procedurally defaulted his claim that the government breached
its plea obligations, by failing to present any such claim before the district
court. 1
       “A movant is barred from raising . . . constitutional claims for the first
time on collateral review unless he demonstrates [1] cause for failing to raise
the issue on direct appeal and [2] actual prejudice resulting from the error.”
United States v. Patten, 40 F.3d 774, 776 (5th Cir. 1994) (per curiam) (citing
United States v. Pierce, 959 F.2d 1297, 1301 (5th Cir. 1992)). We may raise
procedural default sua sponte. See United States v. Willis, 273 F.3d 592, 597
(5th Cir. 2001). We “should not do so lightly,” however. Id. (citing Rosario v.
United States, 164 F.3d 729, 733 (2d Cir. 1998)). But when the petitioner is on
notice of the default bar, has had the opportunity to argue against it, and the
government has not waived the defense, it may be “proper to invoke the
procedural bar.” Id.
       Although Allen’s breach of plea claim is procedurally defaulted, whether
the government breached its plea obligations is something we must decide as
part of Allen’s ineffective assistance claim. If the government did not breach
the plea agreement, then Allen’s counsel had nothing to respond to, and
therefore was not ineffective.
                                             B.
       To obtain relief, then, Allen must demonstrate that his counsel was
constitutionally ineffective—either to excuse his procedural default on his
breach of plea claim, or as a stand-alone ineffective counsel claim. See Patten,


       1 Allen’s § 2255 motion only raised one ground for relief: ineffective assistance of
counsel. To be sure, Allen’s ineffective assistance claim depends on the government
breaching its plea obligations. But the district court considered Allen’s breach of plea claim
as a stand-alone ground for relief. We likewise granted a certificate of appealability on the
breach of plea claim. We accordingly address it here.
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                                     No. 17-60440
40 F.3d at 776 (citing Pierce, 959 F.2d at 1301); see also United States v.
Walling, 982 F.2d 447, 449 (10th Cir. 1992) (“The Strickland ineffectiveness
test dovetails naturally with the cause and prejudice standard.”).
      To succeed on his ineffective assistance claim, Allen “must demonstrate
that (1) counsel’s representation fell below an objective standard of
reasonableness and that (2) there is a reasonable probability that prejudice
resulted.” Druery v. Thaler, 647 F.3d 535, 538 (5th Cir. 2011) (citing Bower v.
Quarterman, 497 F.3d 459, 466 (5th Cir. 2007)). “[A] court must indulge a
strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel
v. Louisiana, 350 U.S. 91, 101 (1955)). So mere disagreement about tactics
does not amount to a constitutional infirmity. See id. at 690.
      We conclude that an evidentiary hearing is needed before we can decide
whether Allen’s representation was constitutionally deficient, based on the
failure to inform the court of Allen’s cooperation in the murder investigation.
      First, we must consider whether there was any error by the government
that could support an ineffective assistance claim.
      As for Allen’s undisputed cooperation in the related drug case, the
district court correctly concluded that the government did not breach the plea
agreement. The PSR disclosed Allen’s cooperation in the drug case. And
nothing in the plea agreement required the government to additionally raise
Allen’s cooperation in the drug case at the sentencing hearing. 2



      2 The cases Allen cites are inapposite. For example, in United States v. Hunter, the
plea agreement expressly provided: “The United States agrees that it will recommend at
sentencing that the Court reduce by two levels the sentencing guideline level applicable to
the defendant’s offense.” 835 F.3d 1320, 1323 (11th Cir. 2016) (emphasis added). And in
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                                       No. 17-60440
       As for Allen’s cooperation in the murder investigation, however, the
government never informed the court, either in the PSR or during the
sentencing hearing. If indeed Allen cooperated with law enforcement in the
murder investigation, and if the government deemed his cooperation relevant
to his sentencing, then the government was obligated to inform the sentencing
court. Because there is some indication that the government did not discharge
its burden, the district court should not have denied relief without inquiring
further or holding an evidentiary hearing.
       The government argues that it did not “deem relevant” Allen’s
cooperation because “it was the opinion of the case agent that his information
was not credible.” 3 In essence, the government contends that any decision not
to inform the court about Allen’s cooperation was necessarily an exercise of the
discretion allowed by the plea agreement. But the government had to actually
exercise that discretion and determine that Allen’s cooperation was not
relevant—rather than simply refuse to inform the court about relevant
information. According to Allen’s sworn statement, he “provided information
in the unsolved murder case,” and “approximately two weeks after [his]
cooperation, an arrest was made in the case.” Moreover, Allen contends that
his “counsel stated that [his counsel] had spoken with the case agent and
affirmed that [Allen’s] information in regard to the murder was good and
useful.” So Allen has provided some evidence that the government considered




Correale v. United States, the court considered the government’s total failure to make the
recommendation it promised to make. See 479 F.2d 944, 946, 949 (1st Cir. 1973).
       3 It is unclear whether the government was addressing Allen’s cooperation in the drug

case or the murder case. In its briefs before us, the government emphasizes that Allen has
not been clear about when he offered the information about the murder or whether it was
useful to investigators. True as far as it goes, the government’s response only highlights the
questions the district court should consider on remand. Thus, the government has failed to
assert that Allen “would not be entitled to relief as a matter of law, even if his factual
assertions were true.” Harrison, 910 F.3d at 826–27 (citing Guerra, 588 F.2d at 521).
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                                  No. 17-60440
his information credible.       And without further explanation from the
government why the evidence was somehow not relevant to Allen’s sentence,
the government has not offered anything that “conclusively negate[s] the
factual predicates asserted in support of the motion for post-conviction relief.”
Friedman v. United States, 588 F.2d 1010, 1015 (5th Cir. 1979) (explaining the
requirements of 28 U.S.C. § 2255(b)).
      Second, if there was a breach, Allen’s counsel’s failure to object to the
breach may have fallen “below an objective standard of reasonableness.”
Druery, 647 F.3d at 538. In his affidavit, Allen’s counsel said that the PSR
reflected Allen’s full cooperation with investigators, and that he did not raise
Allen’s cooperation separately in the sentencing hearing because raising any
mitigating factors would open a “Pandora’s box” of aggravating factors. But
the affidavit, at least on its face, does not address Allen’s contention about his
cooperation in the murder investigation. Accordingly, we lack any “sworn
record testimony from counsel explaining the strategy behind his decision.”
United States v. Cavitt, 550 F.3d 430, 441 (5th Cir. 2008). So we cannot tell
whether Allen’s counsel believed the government breached its obligations
under the plea, or whether his failure to raise any purported breach was a
strategic decision. See, e.g., Herring v. Estelle, 491 F.2d 125, 128 (5th Cir. 1974)
(“[A] lawyer who is not familiar with the facts and law relevant to his client’s
case cannot meet [the] required minimal level.”).
      Third, if there was a breach of the plea agreement, then Allen may have
been prejudiced by his counsel’s failure to object to the breach. Allen contends
that the court might have imposed a lesser sentence had it known about the
full scope of his cooperation. To be sure, the district court concluded that “[i]t
is pure conjecture that Allen’s sentence would have been lesser had Allen’s
counsel disclosed any purported additional cooperation not reflected in the
PSR.” But the district court did not specifically consider Allen’s apparent
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                                     No. 17-60440
cooperation in the murder investigation. Remand will allow the district court
to consider Allen’s contention and determine whether this information would
have made Allen’s sentence “significantly less harsh.”        Dale v. Quarterman,
553 F.3d 876, 880 (5th Cir. 2008) (per curiam) (quoting Spriggs v. Collins, 993
F.2d 85, 88–89 (5th Cir. 1993) (per curiam)).
                                         III.
      Once the district court holds an evidentiary hearing, it may turn out that
there was no violation—either because the government did not breach the plea
agreement or because Allen’s counsel was not ineffective in failing to discover
the breach. But a “motion brought under 28 U.S.C. § 2255 can be denied
without a hearing only if the motion, files, and records of the case conclusively
show that the prisoner is entitled to no relief.” Cavitt, 550 F.3d at 442 (internal
quotation marks omitted) (quoting United States v. Bartholomew, 974 F.2d 39,
41 (5th Cir. 1992) (per curiam)). Because that standard is not met here, we
vacate the judgment and remand for an evidentiary hearing. The district court
should consider whether the government breached its obligation to inform the
court about Allen’s cooperation in the murder case and, if it did, why Allen’s
counsel failed to raise the issue.




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