                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                              File Name: 06a0453p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                              X
                                        Plaintiff-Appellant, -
 UNITED STATES OF AMERICA,
                                                               -
                                                               -
                                                               -
                                                                   No. 05-2133
               v.
                                                               ,
                                                                >
 RICHARD MORRIS,                                               -
                                       Defendant-Appellee. -
                                                              N
                               Appeal from the United States District Court
                              for the Eastern District of Michigan at Detroit.
                             No. 04-80200—Arthur J. Tarnow, District Judge.
                                             Argued: July 20, 2006
                                  Decided and Filed: December 7, 2006
              Before: MARTIN and COLE, Circuit Judges; JORDAN, District Judge.*
                                              _________________
                                                   COUNSEL
ARGUED: Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit,
Michigan, for Appellant. John R. Minock, CRAMER & MINOCK, Ann Arbor, Michigan, for
Appellee. ON BRIEF: Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY,
Detroit, Michigan, for Appellant. John R. Minock, CRAMER & MINOCK, Ann Arbor, Michigan,
for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
         BOYCE F. MARTIN, JR., Circuit Judge. Defendant Richard Morris was charged in
Michigan state court with three firearm and drug related charges. The investigation and prosecution
of his alleged crimes was conducted through Project Safe Neighborhoods, a joint effort between the
federal government and Michigan state authorities to address problems related to gun violence.
Morris initially pled not guilty to charges brought in state court, at which point they were dropped.
His case was then referred to the United States Attorney’s office and he was eventually indicted in
federal court. He subsequently filed a motion to “remand” to state court, on the basis that he was
denied effective assistance of counsel in the state proceedings. After conducting two days of


         *
          The Honorable R. Leon Jordan, United States District Judge for the Eastern District of Tennessee, sitting by
designation.


                                                          1
No. 05-2133                United States v. Morris                                                                   Page 2


evidentiary hearings, the district court agreed that Morris was denied effective assistance of counsel,
and granted his motion. The government now appeals.
                                                              I.
       On February 25, 2004, Morris was arraigned in state court on charges of possession and
delivery of marijuana, felon in possession of a firearm, and unlicensed possession of a concealed
firearm, in violation of MICH. COMP. LAWS §§ 333.7401, 750.224(f), and 750.227(b), respectively.
He requested and was assigned counsel on February 26, 2004, the date on which communication
between state and federal authorities began regarding their cooperative effort to prosecute Morris.
On March 3, 2004, he took part in a “pre-preliminary examination”1 as part of Project Safe
Neighborhoods.
         Immediately before this examination, Morris met with his attorney for the first time. She
advised him of a state plea offer as well as the federal sentencing guideline range as she understood
it. The state’s offer encompassed the charges of possession with intent to deliver marijuana and
unlicensed firearm possession, and included a sentence of one to four years for the marijuana count,
plus two consecutive years for the unlicensed firearm possession count. Morris’s attorney, who had
not practiced in federal court and had no experience interpreting the Federal Sentencing Guidelines,
had been given an estimate of his federal guideline range by the state prosecutor, who had himself
been advised of the range by an Assistant United States Attorney. This estimate was 62 to 68
months, and defense counsel passed it on in turn to Morris. As it turned out, this estimate was
incorrect. Morris was in fact subject to a federal    guidelines range of 90 to 97 months if he pled
guilty, or 101 to 111 months if he did not.2 Morris’s attorney, who had not received complete
discovery at the time, was able to speak only briefly with her client in the “bull pen.” The “bull pen”
is a cell located behind a courtroom. It is usually crowded with detainees and requires attorneys and
clients to shout their communication. Attorneys, court personnel, and officers often walk the
corridor where the bull pen is located, further diminishing attorney-client privacy. Morris’s attorney
was forced to communicate with him through a meshed screen in the presence of other detainees.
        Immediately after this meeting, Morris was taken into the pre-preliminary examination,
where the prosecution made a plea offer — one to four years for the marijuana charge, plus two
consecutive years for the felony firearm charge. The offer required an immediate decision by
Morris. The judge informed him that if he declined, he would be referred to federal court to answer
charges which could result in a more severe sentence. Morris was not able to discuss his options
privately with his attorney. His attorney did not have knowledge of the strength of the case; nor was
she given time to investigate or interview witnesses. He rejected the state’s offer and was referred
to federal court pursuant to Project Safe Neighborhoods, with the understanding that his federal
guideline range would be 62 to 68 months.
         The government filed an indictment in the district court on March 18, 2004. On
September 9, 2004, Morris filed a motion in the district court to remand to state court on the ground
that his state court trial attorney’s failure to properly advise him of the applicable federal sentencing
range, in conjunction with the system of attorney consultation, denied him his Sixth Amendment
right to counsel. After two days of evidentiary hearings, the district court granted Morris’s motion.
It reasoned that Project Safe Neighborhoods was a joint effort between state and federal prosecutors,

         1
          The pre-preliminary examination procedure was established to reduce jail overcrowding by expediting cases
via acceptance of plea offers.
         2
           It is unclear from the record whether the erroneous 62 to 68 month range was based on Morris pleading guilty
in federal court or going to trial, but because it was stated as a condition of him being generally unwilling to plead guilty,
presumably it was the estimate of the sentence he would have faced if found guilty at trial.
No. 05-2133           United States v. Morris                                                    Page 3


and it thus had “power to remedy any constitutional errors” in the state proceedings. D. Ct. Op. at
6. The district court also found that the pre-preliminary examination was a critical stage of the
proceedings at which point the right to counsel attached under Powell v. Alabama, 287 U.S. 45, 57
(1932). Finally, the district court concluded that Morris suffered a constructive absence of counsel
and was denied effective assistance of counsel, and that the appropriate remedy was to dismiss the
federal charges and reinstate the state plea offer.
                                                   II.
       In reviewing the dismissal of an indictment, we review de novo the district court’s legal
conclusions, and “the factual findings supporting its ruling for clear error.” United States v. O’Dell,
154 F.3d 358, 360 (6th Cir. 1998).
  A. The District Court’s Ability to Remedy the Constitutional Violation in State Court
         At the outset, we address the government’s claim that the district court had no authority to
address perceived constitutional errors in the state proceedings by dismissing the federal indictment
and “remanding” to state court. We agree with the government that the district court lacked
jurisdiction to remand the case to state court. The district court does have authority to enforce a plea
agreement, however. United States v. Lukse, 286 F.3d 906, 910 (6th Cir. 2002). We have held that
plea agreements are contractual in nature and interpreted using traditional principles of contract law,
and that a district court can utilize specific performance to remedy any breach of the agreement. Id.
Of course in this case an agreement was never reached on the state court plea offer. Even so, under
Hill v. Lockhart, 474 U.S. 52 (1985), a criminal defendant is entitled to competent advice of counsel
in plea negotiations. Further, where the state extends a plea offer but simultaneously denies a
defendant the effective assistance of counsel at the plea stage, a necessary part of the district court’s
remedial authority include its ability to put the defendant back in the position he would have been
but for the ineffective assistance of counsel. Tennessee v. Turner, 858 F.2d 1201, 1205 (6th Cir.
1988), vacated on other grounds, 492 U.S. 902 (1989), reinstated, 726 F. Supp. 1113 (M.D. Tenn.
1989), aff'd, 940 F.2d 1000 (6th Cir. 1991), cert. denied, 502 U.S. 1050 (1992) (“[T]he only way
to neutralize the constitutional deprivation suffered by Turner would seem to be to provide Turner
with an opportunity to consider the State’s two-year plea offer with the effective assistance of
counsel.”); United States v. Allen, 53 Fed. App’x 367, 373-74 (6th Cir. 2005) (“[I]f it were shown
that defense counsel provided ineffective assistance, the remedy is to compel the government to
reinstate the prior plea offer, restoring Mr. Allen to where he was before ineffective assistance was
rendered.”).
        This case is different from Turner or Allen, in that Allen involved a plea offer made in a
federal prosecution that was under direct review, and Turner was a habeas corpus appeal, where the
federal courts have explicit statutory authority to remedy constitutional violations in state court
prosecutions. Here, instead, we are faced with a federal prosecution, before us on direct review,
where the defendant seeks to reinstate a plea offer made in state court. The rationale of Turner and
Allen applies with equal force here, however, because there is significant evidence in the record that
the United States Attorney’s office was involved with the state court plea negotiations pursuant to
Project Safe Neighborhoods. Most importantly, the United States Attorney’s Office was involved
in deciding whether a plea offer would be made available to Morris in state court, and the state court
plea offer included an agreement that Morris would not be prosecuted in federal court, even though
the state and federal governments could have chosen to pursue separate prosecutions. Because the
United States Attorney’s Office made itself a party to the state court plea offer, the district court was
justified in enforcing the plea offer against it based on traditional principles of contract law.
Although there is no basis for the purported remand to state court and the related reinstatement of
No. 05-2133                United States v. Morris                                                                   Page 4


the state plea offer, dismissal of the federal indictment was within the district court’s authority3 to
put Morris back in the position he would have been in but for the denial of his right to counsel in
light of the federal prosecutor’s entanglement with the state plea process.
                             B. Denial of Sixth Amendment Right to Counsel
        The government also challenges the district court’s conclusion that Morris was denied the
effective assistance of counsel in violation of the Sixth Amendment. The district court’s ruling was
based both on the rule of constructive absence of counsel from United States v. Cronic, 466 U.S. 648
(1984), and its determination that Morris had a viable claim of ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668 (1984) and Hill. We agree with both of these
conclusions.
         We have described the standard for constructive denial of counsel under Cronic as follows:
         If a claim is governed by Cronic, . . . the defendant need not demonstrate any
         prejudice resulting from the lack of effective counsel; in some cases, the Sixth
         Amendment violations are “so likely to prejudice the accused that the cost of
         litigating their effect in a particular case is unjustified.” Cronic, 466 U.S. at 658.
         Three types of cases warrant Cronic’s presumption-of-prejudice analysis. The first
         is the complete denial of counsel, in which “the accused is denied the presence of
         counsel at ‘a critical stage.’” The second is when counsel “entirely fails to subject
         the prosecution’s case to meaningful adversarial testing.” The third is when counsel
         is placed in circumstances in which competent counsel very likely could not render
         assistance.
Mitchell v. Mason, 325 F.3d 732, 741-742 (6th Cir. 2003).
        Based on this standard, the district court found that Wayne County’s practice of assigning
counsel shortly before the pre-preliminary examination amounts to a “state impediment to effective
assistance of counsel.” D. Ct. Op. at 13. The district court based this determination on the
extremely short time period that the system allows appointed counsel to prepare for the hearing, the
lack of privacy afforded in the bull pen, which prohibits counsel from having a confidential,
privileged conversation with the client before the hearing, and the requirement that a defendant make
an immediate decision regarding the plea offer.4 As the district court pointed out, ABA Standards
for Criminal Justice provide that a thorough discussion with the client is necessary at the outset of
representation, which is entirely precluded by the lack of time and confidentiality under the Wayne
County system. See 1 ABA Standard for Criminal Justice 1(a) & (b). Further, defense counsel is


         3
          By way of analogy, we note that dismissal of an indictment is part of a district court’s authority to remedy
other constitutional violations, such as in cases of prosecutorial misconduct. See United States v. Adamo, 742 F.2d 927,
942 (6th Cir. 1984). Dismissal of the indictment here goes no further than the district court’s remedial authority in that
context.
         4
           The district court also expressed its skepticism with the fee system for appointed counsel, by which they are
paid $40 for appearing at the pre-preliminary hearing when no plea is entered, and even if they request a continuance
are paid no additional fee beyond the $40, while if their client accepts the plea, they receive “a minimum of $500 to
$700.” D. Ct. Op. at 12. This fee structure clearly provides counsel an incentive to encourage the defendant to accept
the state’s plea offer immediately, and a disincentive to seek more time to investigate and seriously weigh the merits of
a defendant’s case. Although the district court stated that “Project Safe Neighborhoods, on an institutional level, is a
state barrier to counsel for indigent defendants,” D. Ct. Op. at 13, (emphasis in original) and the district court’s troubling
observations as to the incentives created by the fee structure find support in the record, it appears to have based its
ultimate determination on the time constraints and lack of privacy, rather than the fee structure. Our review thus focuses
primarily on these factors, even though we are similarly concerned by the incentives created by the fee structure.
No. 05-2133               United States v. Morris                                                                Page 5


given very little time to review any discovery material before advising her client regarding a plea.
Although the district court did not explicitly state which type of “Cronic failure” it found this
situation analogous to, given its factual findings, we have no trouble agreeing that in this case
“counsel was placed in circumstances in which competent counsel very likely could not render
assistance.” Mitchell, 325 F.3d at 742. As a result, Morris is presumed to have been prejudiced by
the situation in which his attorney was placed, and has a valid claim of constructive denial of
counsel.5
        The government contends that “[t]he fact that his attorney actually gave him legal advice is
simply inconsistent with a conclusion that counsel was not acting as a lawyer during the defendant’s
consideration of the state plea offer.” This argument ignores the rule from Cronic that constructive
denial of counsel can occur under circumstances where even competent counsel could not render
assistance. The fact that Morris’s counsel gave him some advice does not preclude a finding of
constructive denial of counsel under this standard. Rather, the circumstances, such as the lack of
time for adequate preparation and the lack of privacy for attorney-client consultation, would have
precluded any lawyer from providing effective advice. This is demonstrated here in part by the fact
that Morris’s counsel was precluded from taking basic preparatory steps such as looking at his prior
record in conjunction with the federal sentencing guidelines so as to make an accurate prediction
of his guideline range, and instead had to rely on the erroneous estimate provided by an Assistant
United States Attorney of 62-68 months, where the actual guideline range was either 90-97 months
or 100-111 months, or roughly 50 percent higher than the estimate provided. The inability of
Morris’s counsel to accurately estimate his federal sentencing guideline range and the resulting
incorrect estimate factored into Morris’s calculus in contemplating the state’s plea offer.
        We also agree with the district court that Morris was denied the effective assistance of
counsel under Strickland and Hill. Strickland requires two elements to establish an ineffective
assistance of counsel claim: (1) counsel’s performance must have fallen below an objective standard
of reasonableness, and (2) there must be a reasonable probability that but for the deficient
performance, the outcome of the proceedings would have been different. 466 U.S. at 694. Hill
applied this test in the context of plea offers, requiring that a defense attorney inform her client of
plea offers and the potential penalties, and held that to establish an ineffective assistance of counsel
claim, a defendant must show (1) that he did not receive such advice, and (2) “a reasonable
probability that he would have pleaded guilty had he received proper advice.” Griffin v. United
States, 330 F.3d 733, 738 (6th Cir. 2003).
        This Court has given special weight to significant disparities between penalties offered in
a plea and penalties of a potential sentence in determining whether a defendant suffered prejudice
by not accepting a plea offer. Id. at 737 (“[A] substantial disparity between the penalty offered by
the prosecution and the punishment called for by the indictment is sufficient to establish a reasonable
probability that a properly informed and advised defendant would have accepted the prosecution's
offer.”) (quoting Dedvukovic v. Martin, 36 Fed. App’x 795, 798 (6th Cir. 2002)). The district court
followed this approach here, reasoning that Morris stood to be sentenced to 101 to 111 months if he
did not plead guilty and was convicted in federal court, which was almost double the 60 to 68
months estimated when the state made its initial plea offer. Because Morris’s attorney was
unfamiliar with the Federal Sentencing Guidelines and was forced to rely on the erroneous estimate
provided by the prosecutor, her advice to Morris “fell below an objective standard of
reasonableness.” Because Morris, in turn, relied on the erroneous information, he suffered prejudice



         5
           This is not to say that the government is somehow prohibited from making “take it or leave it” plea offers, but
merely that by making such an offer, they cannot thereby avoid the requirement of Hill that a defendant be provided
effective assistance of counsel at the plea-bargaining stage of a criminal proceeding.
No. 05-2133               United States v. Morris                                                               Page 6


and his “ability to make an intelligent decision regarding a plea offer [was] severely undermined.”
Id. (citing United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992)).
         The government contends that it is relevant for Morris’s Strickland claim that he maintained
his innocence in discussions with his attorney pursuant to the state-court proceedings.6 As the
district court found, factoring in Morris’s assertion of his innocence would inappropriately punish
him for exercising his Fifth Amendment right against-self incrimination. Considering that the lack
of privacy afforded Morris and his counsel prevented him from having a confidential consultation,
his assertion of his innocence is even more irrelevant, as it was not even made in a confidential or
privileged conversation. Further, viewing Morris’s assertion of his innocence as a relevant
consideration would be at odds with this Court’s precedent, which clearly establishes that it “does
not make sense to say that a defendant’s protestations of innocence belie his later claim that he
would have accepted a guilty plea.” Griffin, 330 F.3d at 738.
                                                          III.
        For the foregoing reasons, we affirm the district court’s conclusion that Morris was denied
the effective assistance of counsel under both Cronic and Hill. Because the district court lacks
authority to remand the case to state court, we reverse that portion of its order, but conclude that it
does have the authority to dismiss the federal indictment in order to remedy the constitutional
violation. The case is remanded to the district court for further proceedings consistent with this
opinion.




         6
           The government raised this issue with regard to the constructive denial of counsel claim as well. Because this
argument only goes to the prejudice prong of Hill — i.e., whether the defendant would have pled differently without the
erroneous advice — and because prejudice is presumed in a constructive denial of counsel claim under Cronic, this point
is not relevant to the constructive-denial-of-counsel claim.
