           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2     McAdoo v. Elo                                No. 01-2050
        ELECTRONIC CITATION: 2004 FED App. 0105A (6th Cir.)
                    File Name: 04a0105a.06                                Debra M. Gagliardi, OFFICE OF THE ATTORNEY
                                                                          GENERAL, CORRECTIONS DIVISION, Lansing,
                                                                          Michigan, Appellee. ON BRIEF: James R. Gerometta,
UNITED STATES COURT OF APPEALS                                            Penny R. Beardslee, FEDERAL PUBLIC DEFENDERS
                                                                          OFFICE, Detroit, Michigan, for Appellant. Debra M.
                  FOR THE SIXTH CIRCUIT                                   Gagliardi, OFFICE OF THE ATTORNEY GENERAL,
                    _________________                                     CORRECTIONS DIVISION, Lansing, Michigan, Appellee.

 SILAS T. MCADOO ,                 X                                                        _____________________
          Petitioner-Appellant, -
                                    -                                                        AMENDED OPINION
                                    -  No. 01-2050                                          _____________________
            v.                      -
                                     >                                      JULIA SMITH GIBBONS, Circuit Judge. Silas McAdoo
                                    ,                                     appeals the district court’s denial of his petition for a writ of
 FRANK ELO , Warden                 -
          Respondent-Appellee. -                                          habeas corpus. McAdoo pled guilty in Michigan state court
                                                                          to one count of second-degree murder and two counts of
                                   N                                      assault with intent to commit murder. Pursuant to a plea
       Appeal from the United States District Court                       agreement, he was sentenced to three life sentences to run
      for the Eastern District of Michigan at Detroit.                    concurrently. McAdoo later claimed that his attorney
     No. 98-74705—Paul D. Borman, District Judge.                         misinformed him about the consequences of a life sentence.
                                                                          McAdoo raises three issues in this appeal, arguing that (1) his
                   Argued: February 5, 2003                               guilty plea was not knowing and voluntary because he
                                                                          misunderstood its consequences, (2) his plea was illusory
              Decided and Filed: April 15, 2004                           based on the effective unavailability of parole for those
                                                                          serving a statutory life sentence, and (3) his trial counsel was
        Before: GILMAN and GIBBONS, Circuit Judges;                       ineffective for allegedly misinforming McAdoo about his
                  POLSTER, District Judge.*                               possible sentence. For the following reasons, we affirm the
                                                                          district court’s denial of habeas relief.
                      _________________
                                                                                                         I.
                            COUNSEL
                                                                             McAdoo was charged in Michigan state court with one
ARGUED: James R. Gerometta, FEDERAL PUBLIC                                count of first-degree murder and two counts of assault with
DEFENDERS OFFICE, Detroit, Michigan, for Appellant.                       intent to commit murder. The charges arose from the
                                                                          stabbing death of McAdoo’s wife, Alicia Kelley, and the
                                                                          stabbing of two of his daughters. At McAdoo’s preliminary
    *
                                                                          hearing, his ten and fourteen year old daughters testified
     The Ho norable Dan Aaron Polster, United States District Judge for
the Northern District of Ohio, sitting by designation.

                                  1
No. 01-2050                              McAdoo v. Elo       3    4      McAdoo v. Elo                               No. 01-2050

about the facts of McAdoo’s offenses, all of which occurred       there was confusion when McAdoo entered his plea about
in the family home.                                               what the sentence would be. The prosecutor responded that
                                                                  there was some confusion at sentencing, “but not at plea
   On January 9, 1995, the trial date, McAdoo entered a           time.”
guilty plea to the lesser offense of second-degree murder and
two counts of assault with intent to commit murder. The             At the resentencing hearing, McAdoo, who was not under
agreement was in exchange for the dismissal of the first-         oath, had the following exchange with the state trial court:
degree murder charge that carried a maximum sentence of life
without parole. At the plea proceeding, McAdoo’s attorney               THE COURT: Mr. McAdoo, sir, do you wish to say
told the court that the plea agreement indicated three life           anything before this Court imposes the correct sentence,
sentences. McAdoo signed the plea form, which stated that             which was pursuant to the plea agreement?
the agreement was for three life sentences. McAdoo stated to
the court under oath that no one had promised him anything               DEFENDANT McADOO: Yes, Judge Braxton. The
other than what the plea form indicated.                              day that you accepted my plea, I don’t know if you
                                                                      remember. I know you have a lot of cases that you have
   Sentencing was held on February 1, 1995. At the outset,            to do, but when Batchelor first came before you with me,
McAdoo’s attorney stated that McAdoo did not want to                  and you asked me more than once did I understand, and
withdraw his plea, and McAdoo agreed on the record. The               you asked me how did I plead, and I pled not guilty.
court stated that it was ready to “impose a sentence in accord
with the sentence agreement.” It then sentenced McAdoo to               Then he took me, and we went into the back chambers
parolable life for the murder conviction and two concurrent           or in another room, and he made the statement to me, and
terms of twenty years imprisonment for the assault                    maybe I am wrong, but I was told that the three life
convictions. The sentencing judge stated, “Count one and              sentences would be 20, 20, 20 to run concurrently, and
murder two for a term of statutory life which is 20 years.”           that my kids would not have to be subjected to the Court.
Although the judge indicated an intent to sentence McAdoo
in accord with the plea agreement, she failed to do so. First,          THE COURT: But he did inform you that they were
a statutory life term does not equal twenty years in Michigan.        three life sentences. Is that correct?
Second, the plea agreement did not call for twenty-year
sentences for the assault convictions.                                  DEFENDANT McADOO: Yes, Ma’am.

   The prosecution then moved to amend the sentence to                  THE COURT: Which is indicated on this form.
conform to the plea agreement, which had provided for three              MR. DEFENDANT: But he, I guess what I am trying
concurrent life sentences rather than one life sentence and two       to say is, Judge Braxton, that if I had understood what he
twenty-year sentences. Resentencing occurred on March 24,             was telling me which, as I stated to you before, I had no
1995. McAdoo, then represented by his second counsel,                 knowledge of what was going on whatsoever. I have no
Robert Plumpe, requested the withdrawal of his guilty plea,           –
claiming that he did not understand the nature of his plea
agreement and that he was under the influence of medication              THE COURT: Now you had some knowledge because
at the time he entered his plea. Defense counsel argued that          I spoke to you. But you go ahead.
No. 01-2050                                         McAdoo v. Elo             5    6       McAdoo v. Elo                                        No. 01-2050

      DEFENDANT McADOO: What I am trying to say is                                   McAdoo was then appointed a third counsel, Edward
   my lawyer, Batchelor, he never spoke with me about                              Jabbour, who filed another motion to withdraw McAdoo’s
   anything. It was just the first time I ever saw this piece                      guilty plea, arguing that the plea was not knowing and
   of paper here was the day that you took my plea                                 voluntary. The sentencing court held a hearing on this motion
   agreement. When I first saw you, and it was more or less                        on March 7, 1996. Jabbour argued that McAdoo entered his
   stated to me accept it or get another attorney. I wrote all                     plea believing that he would be released after twenty years
   this up, and I turned it in to the Grievance Commission.                        imprisonment and that this alleged misunderstanding nullified
                                                                                   the plea.
      But anyway to sum it all up, he told me something that
   was different than what you did, and that’s the only thing                        The court conducted an evidentiary hearing on May 9,
   I am arguing, and is the fact that I didn’t understand what                     1996, to determine whether McAdoo’s alleged
   he was doing. If I would have understood that he was                            misunderstanding nullified his plea. At the May 9, 1996,
   sentencing me to three life sentences to the point, why                         hearing, Batchelor testified that his understanding was that
   not fight the case?                                                             the penalty for first-degree murder in Michigan was a
                                                                                   sentence of “natural life” and the penalty for second-degree
     I didn’t want my kids to be subjected to it. It was                           murder was a sentence of “parolable” life. He testified that he
   enough that they went through. And then for him to tell                         was familiar with the “Lifer Law,”2 which would have
   me that it would be the three life sentences, I know I                          governed McAdoo’s possibility of parole. When asked what
   need to be punished for what I did. No problem                                  his understanding of the “Lifer Law” was, Batchelor stated,
   whatsoever with that. But that’s not what he explained                          “in terms of what I remember in discussion with Mr. McAdoo
   to me. That’s all I am trying to say to the Court.                              with regards to the Lifer Law, we never discussed it.” When
                                                                                   asked whether he had said anything to McAdoo about what a
The court then conformed the sentence to the written plea                          sentence of life imprisonment means, Batchelor responded, “I
agreement and stated that it would consider McAdoo’s                               don’t recall saying anything to him about life imprisonment.”
motion to withdraw the plea if he presented evidence that his
mental state and medication prevented him from knowingly                             McAdoo presented the testimony of Michael Patrick
entering a guilty plea.1                                                           Martin, prisoner advocate for the Wayne County jail at the
                                                                                   time of McAdoo’s incarceration there, and Mark Carrico of

                                                                                       2
                                                                                         The “Lifer La w,” M.C.L. § 791.233b; M.S.A. § 28.303(3), provides
     1
                                                                                   that prisoners convicted of an enumerated offense (such as second-degree
      On May 4, 199 5, the court conducted a hearing on that issue. Dr.            murder) are not eligible for parole until the prisoner has served the
Ke ith Dlugokinski, a psychologist from the prison where McAdoo was                minimum term less available d isciplinary cred its. People v. Lino, 539
incarcerated, testified that McA doo was suffering from major depression           N.W.2d 545 , 549 (M ich. Ct. A pp. 1 995 ), overruled on other grounds by
and was being medicated at the time he entered his plea. However,                  Peo ple v. Carson, 560 N.W.2d 657, 665 (M ich. Ct. App. 1996). In
Dlugokinski also testified that McAd oo’s medications would not have               McA doo’s case, the “Lifer Law” would have m eant that he was likely to
significantly impaired his cognitive abilities. Although no order denying          be eligible for parole after serving appro ximately fifteen years. Lino, 539
the motio n to withd raw the plea appe ars in the record, it is evident that the   N.W.2d at 548-49 (defendant serving parolable life sentence for crime
court denied the mo tion. T he issue of M cAd oo’s p sychological state and        committed on or after O ctober 1, 1992 , is subject to the jurisdiction of the
med ications has no t been raised in this app eal.                                 parole board and eligible for parole after fifteen years imprisonment).
No. 01-2050                                       McAdoo v. Elo            7    8      McAdoo v. Elo                               No. 01-2050

the Team for Justice, who visited McAdoo after his                                  Upon questioning Mr. Batchelor, he indicated there was,
incarceration. Jabbour asked Martin if McAdoo told him                              in fact, a plea bargain that was made on the day of trial.
about the sentence agreement contained in the plea                                  He testified further that he, being Mr. Batchelor, was of
agreement. The prosecution objected to this evidence as                             the opinion that the plea offered the defendant would
hearsay. Jabbour argued that the evidence was “state of                             give him a better opportunity to put his client in the best
mind” testimony, but the court sustained the objection.                             possibl[e] posture that he could be in, and he made it
Jabbour attempted to elicit the same information from Carrico                       know[n] to his client what his options were at the time
that he had from Martin. Carrico stated that, at some                               ...
unspecified time before McAdoo was transferred to a state
prison to serve his sentence, McAdoo told Carrico he would                          This Court, after listening to the witnesses and the
“get out in 17 years.” Jabbour then asked the court to rule                         testimony that was presented in terms of the defendant's
that if McAdoo testified, he could not be questioned about the                      state of mind, the defendant stated it was his
underlying facts of the offense. The court ruled that McAdoo                        understanding he would be parolable in 17 years which,
could be questioned about any facts that were relevant to the                       in fact, is the truth. And this Court, when taking a plea
motion to withdraw the plea. McAdoo did not testify.3                               from any defendant as best as I can recall, I’m very
                                                                                    meticulous in terms of whether or not the defendant has
 At the close of the hearing, the court denied McAdoo’s                             an understanding of what it is he's doing. Of course, I
motion to withdraw his guilty plea, concluding:                                     cannot and I do not go behind the scene to ask questions
                                                                                    as to w[he]ther or not--what the defendant's particular
  If I look at the testimony and my view of the witnesses                           understanding is of what a certain word means to a
  that testified this afternoon, he stated – Mr. Carrico stated                     particular defendant. That I do not do. So, based upon
  he met the defendant back in 1994, and that the                                   the testimony I've heard, I deny the defendant’s motion.
  defendant’s mother called him because he’s a member of
  the Team for Justice. He further testified that he visited                      Following denial of his second motion to withdraw his
  weekly with the defendant before he was sent to Jackson                       guilty plea, McAdoo filed a delayed application for leave to
  [prison], and Mr. Carrico also testified he was at the                        appeal to the Michigan Court of Appeals. This application
  sentencing. Mr. Carrico further testified that defendant                      was denied for lack of merit in the grounds presented.
  told him he would be eligible for parole in 17 years.                         McAdoo then filed a delayed application for leave to appeal
  That’[s] what your witness means to the understanding                         to the Michigan Supreme Court, which was denied.
  the defendant had at that time.
                                                                                  McAdoo then filed a petition for writ of habeas corpus
                                                                                pursuant to 28 U.S.C. § 2254. On June 18, 2001, the district
                                                                                court entered an order denying the petition for habeas corpus.
    3                                                                           McAdoo was granted a certificate of appealability with
      McAdoo later stated in an affidavit filed in the district court that
Batchelor had told him that a “life sentence” in M ichigan was the
                                                                                respect to his claims that his plea was involuntary, that his
equivalent of a twenty-year sentence and that he would be paroled in
app roxim ately seventeen-and -a-half years. Beca use this affidavit was not
part of the record before the state court, we do not consider it in assessing
whether the state court’s decision to deny M cAd oo’s m otion to withdraw
his plea was objec tively unreasonable.
No. 01-2050                                      McAdoo v. Elo           9    10    McAdoo v. Elo                                 No. 01-2050

plea was illusory, and that his defense counsel was ineffective               errors in state procedure and/or evidentiary law do not rise to
in advising him about the consequences of his plea.4                          the level of federal constitutional claims warranting relief in
                                                                              a habeas action unless the error renders the proceeding so
                                   II.                                        fundamentally unfair as to deprive the petitioner of due
                                                                              process under the Fourteenth Amendment. Estelle v.
  The Antiterrorism and Effective Death Penalty Act                           McGuire, 502 U.S. 62, 69-70 (1991).
(“AEDPA”) governs this case. Under 28 U.S.C. § 2254(d),
a federal court may not grant habeas relief unless the                                                       III.
adjudication in the state court proceedings:
                                                                                                             A.
  (1) resulted in a decision that was contrary to, or
      involved an unreasonable application of, clearly                           We apply the standards of AEDPA to McAdoo’s three
      established Federal law, as determined by the                           claims. His first contention is that his guilty plea was not
      Supreme Court of the United States; or                                  knowing and voluntary because he was misinformed by his
                                                                              attorney about the consequences of his plea. Although
  (2) resulted in a decision that was based on an                             McAdoo acknowledges that he was aware that he was
      unreasonable determination of the facts in light of                     receiving a life sentence, he argues that he misunderstood the
      the evidence presented in the State court proceeding.                   implications of a life sentence because of erroneous
                                                                              statements made to him by his lawyer and that the state court
Under AEDPA, “[a] federal habeas court may not issue the                      finding otherwise was objectively unreasonable.
writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly                  The Supreme Court has held that a defendant must have
established federal law erroneously or incorrectly.” Williams                 “sufficient awareness of the relevant circumstances and likely
v. Taylor, 529 U.S. 362, 411 (2000). Rather, the issue is                     consequences” of his plea. Brady v. United States, 397 U.S.
whether the state court’s application of clearly established                  742, 748 (1970). A guilty plea must be accompanied by “an
federal law was “objectively unreasonable.” Id. at 409.                       affirmative showing that it was intelligent and voluntary.”
                                                                              Boykin v. Alabama, 395 U.S. 238, 242 (1969). Such a
   A federal court is to apply a presumption of correctness to                showing is generally made by the government’s production of
state court findings of fact for habeas corpus purposes unless                a transcript of state court proceedings to establish that the plea
clear and convincing evidence is offered to rebut this                        was made voluntarily. Garcia v. Johnson, 991 F.2d 324, 326
presumption. 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161                     (6th Cir. 1993).
F.3d 358, 360-61 (6th Cir. 1998). The appeals court gives
complete deference to the federal district court’s and state                    Prior to entering his plea, McAdoo signed the Pretrial
court’s findings of fact supported by the evidence. Clemmons                  Settlement and Notice of Acceptance, which indicated that the
v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994). Trial court                     sentence for each of the three offenses would be life
                                                                              imprisonment. When entering the plea, McAdoo stated under
                                                                              oath that he understood the terms of the plea agreement and
    4
      A certificate of appealability was denied on McAdo o’s claim that his   that he knowingly and voluntarily entered into the agreement.
attorney was ineffective for failing to pursue a diminished capa city         McAdoo also testified that no additional promises, other than
defense.
No. 01-2050                                        McAdoo v. Elo           11     12   McAdoo v. Elo                                 No. 01-2050

those contained in the plea agreement, had been made to him.                        immediately qualified that information by adding that the
Shortly before McAdoo entered his plea, his attorney stated                         maximum period he could serve for the sentence would
to the court that the plea agreement called for three life                          be 15 years. Nowhere does the record show that Hart was
sentences and that he had discussed the agreement with                              informed before entering his plea of the true sentence, a
McAdoo. The attorney also stated that he had explained                              minimum of 30 years and a maximum of 75. He was
McAdoo’s constitutional rights to him and McAdoo had                                informed by the court of this range at his sentencing
indicated his understanding.                                                        hearing, but again at the hearing, the court stated that
                                                                                    under Ohio law he would only serve 15 years of the
  McAdoo does not contend that the plea colloquy was                                sentence. . . . Although this statement occurred after Hart
inadequate. He acknowledges that he knew he was agreeing                            entered his plea, it is evidence that the trial judge himself
to a life sentence. His argument is rather that there was                           did not understand the consequences of the plea
confusion about the consequences of a parolable life sentence                       agreement and, accordingly, did not give Hart correct
in Michigan at the time and that he relied on the alleged out-                      information on the consequences of his plea.
of-court statements of his attorney. In further support of the
existence of confusion, he cites the statement of the judge at                    Id. at 258. This case differs from Hart in that McAdoo was
sentencing that he would receive “a term of statutory life                        aware he was receiving a life sentence. Unlike the court in
which is 20 years” and the attorneys’ silence after that                          Hart, the state court in this case made its sole misstatement at
statement.5                                                                       the sentencing, only after the plea had been entered and
                                                                                  accepted. Any misstatement by the judge at sentencing could
  McAdoo contends that his case is analogous to Hart v.                           not possibly have affected McAdoo’s understanding at the
Marion Correctional Institution, 927 F.2d 256 (6th Cir.                           time he entered his plea, the relevant time for our inquiry.
1991). In Hart, the state trial judge and Hart’s attorneys
incorrectly informed him that his maximum period of                                  After an evidentiary hearing about whether McAdoo’s plea
incarceration would be fifteen years if he pled guilty. The                       was entered knowingly, the state court found that his alleged
maximum was actually seventy-five years. This court stated:                       misunderstanding did not invalidate the plea. The state court
                                                                                  accepted as true McAdoo’s evidence (in the form of Carrico’s
  This record shows that the court informed Hart he could                         testimony) that he believed he would be paroled in seventeen
  be sentenced from 60 to 150 years. The court                                    years. This evidence, however, does not show that his plea
                                                                                  was unknowingly entered, as the state court correctly found.
                                                                                  See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (“We have never
    5
       McAdoo also attempts to show confusion about the consequences              held that the United States Constitution requires the State to
of a parolable life sentence by submitting evidence that the State Bar of         furnish a defendant with information about parole eligibility
Michigan addressed the issue of the consequences of a life sentence at an         in order for the defendant’s plea of guilty to be voluntary.”);
annual meeting in September 2000, some five and a half years after
McAdoo entered his guilty plea and so me four and a half years after his
                                                                                  James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995) (“The United
state evidentiary hearing. Evidence about this meeting obviously was not          States Constitution does not require the State to furnish a
a part of the reco rd co nsidered b y the state court. In any event, statements
at the annual meeting tend to show that there was confusion about the
likelihood of parole for prisoners sentenced to parolab le life, but they do
not indicate that it was reasonable to believe that a life sentence in
Michigan mean t anything other than what its name implies.
No. 01-2050                                        McAdoo v. Elo          13     14    McAdoo v. Elo                                No. 01-2050

defendant with information about parole eligibility in order                     did not affect the outcome of the state hearing. The state
for the defendant’s plea of guilty to be voluntary.”).6                          court heard testimony from Carrico that McAdoo believed
                                                                                 that he would be eligible for parole in seventeen and a half
  McAdoo’s argument that at the time of his guilty plea there                    years. It accepted that testimony as truthful and also
was confusion in Michigan about the consequences of a                            determined that McAdoo’s belief was consistent with his
parolable life sentence is intertwined with an argument that                     actual date of parole eligibility under Michigan law.
the state court made erroneous evidentiary rulings at the
hearing on his request to withdraw his plea.7 First, McAdoo                         McAdoo attempts to characterize his misunderstanding
contends that the state court erroneously excluded Martin’s                      about the consequences of his sentence of parolable life as a
“state of mind” testimony. Second, he contends that the state                    misunderstanding about more than his parole eligibility date
court’s incorrect ruling that, if McAdoo testified, he could be                  or the likelihood of parole. He argues that he in fact thought
cross-examined about the underlying facts of the case forced                     a life sentence meant a twenty-year sentence. Although
him to elect not to testify.8 Whatever the merit of these                        McAdoo presented no evidence of this belief to the state
evidentiary arguments, the state court’s evidentiary rulings                     court, at resentencing (in an unsworn statement during his
                                                                                 allocution), he told the state court that Batchelor told him that
                                                                                 “the three life sentences would be 20, 20, 20 to run
    6
                                                                                 concurrently.”
      As a practical matter, any information given to a defendant about
paro le at the time he pleads guilty is inherently imprecise. Both parole          In Ramos v. Rogers, 170 F.3d 560 (6th Cir. 1999), the
eligibility and likelihood are unpredictable. A number of factors, such as
the earning of sentence credits, may affect the time at which a prisoner
                                                                                 defendant attempted to withdraw his guilty plea after
becomes eligible for parole. Furthermore, factors such as the crimes of          sentencing. While accepting his plea, the state trial court
conviction, the entire crimina l record, and behavior in prison may impact       asked Ramos whether he understood that he was not going to
the likelihood of parole at a particular time after a prisoner becomes           receive probation under any circumstances. Id. at 562.
eligible for parole. The likelihood of parole is also affected by changes        Ramos responded that he understood. Later, he attempted to
in the law and in the comp osition and attitudes of parole bo ard members.
See James, 56 F.3 d at 666 (noting that changes in L ouisiana’s
                                                                                 withdraw his guilty plea, arguing that his lawyer had actually
commutation procedures made paro le more difficult to attain). As                promised him that he would receive “supershock probation.”
McAd oo’s evidence of the 2000 Michigan bar meeting suggests, the fact           Id. at 562-63. On appeal, Ramos contended that he was told
that few Michigan prisoners sentenced to parolable life are paroled when         only that he was ineligible for probation but not that he was
they are first eligible is attributable to a “political shift.” An assessment    ineligible for supershock probation. Id. at 563. He testified
of the likeliho od that M cAd oo w ill be paroled when he becom es eligible      that he did not know the difference between supershock
in 201 0 wo uld have be en speculative in 199 5 whe n he pled guilty and is
speculative today, beca use there is no m eans o f ascertaining future paro le   probation and “regular” probation. Id. The court was not
boa rd policy or other relevant factors.                                         persuaded by the argument that the individual defendant’s
                                                                                 misunderstanding of a commonly used term rendered his plea
    7
     McAdoo does not claim that these evidentiary rulings made the               void. It held that “such word games cannot be permitted to
proceedings so fund amentally unfair as to dep rive him of due p rocess.         vitiate the use of simple words in court.” Id. at 565 n.6.
    8
                                                                                 Ramos essentially asked the court to rely on his subjective
      McAd oo’s description of the state court ruling is not pre cisely          impression of the words used, garnered from his lawyer’s
accurate. W hile certainly the state court left open the possibility of such     misstatements, rather than the plain meaning of the statements
cross-examination, it did so only to the extent an underlying fact might be
relevant to the motion to withdraw the plea.
                                                                                 made in court. This court declined to do so:
No. 01-2050                              McAdoo v. Elo      15    16   McAdoo v. Elo                               No. 01-2050

  If we were to rely on Ramos’s alleged subjective                pleas). McAdoo acknowledged in court under oath that he
  impression rather than the record, we would be rendering        was agreeing to a life sentence, and the evidence and his
  the plea colloquy process meaningless, for any convict          unsworn statement presented to the state court failed to show
  who alleges that he believed the plea bargain was               that he reasonably believed he was actually agreeing to a
  different from that outlined in the record could withdraw       maximum sentence of only twenty years.
  his plea, despite his own statements during the plea
  colloquy . . . indicating the opposite. This we will not          Therefore, the state court did not err in finding that
  do, for the plea colloquy process exists in part to prevent     McAdoo understood the consequences of his plea. The state
  petitioners such as Ramos from making the precise claim         court’s findings are entitled to considerable deference under
  that is today before us. Where the court has scrupulously       AEDPA. A federal court may grant habeas relief only where
  followed the required procedure, the defendant is bound         the state court proceeding “resulted in a decision that was
  by his statements in response to that court’s inquiry.          based on an unreasonable determination of the facts in light
                                                                  of the evidence presented.”          28 U.S.C. § 2254(d).
170 F.3d at 566 (internal quotation marks omitted).               Considering the record here, we cannot say that the state
                                                                  court’s determination that McAdoo knowingly and
  The present case presents a closer question than Ramos.         voluntarily entered his plea was unreasonable.
However, as in Ramos, we hold that a term that is
unambiguous on its face and agreed to by the defendant in                                       B.
open court will be enforced. See Hall v. Maggio, 697 F.2d
641, 643 (5th Cir. 1983) (per curiam) (holding that                 McAdoo next contends that his plea bargain was illusory
defendant’s misunderstanding about life sentence, based on        because he obtained no real benefit from entering a guilty
“common knowledge” and attorney’s misadvice, did not              plea. The Michigan Parole Board rarely grants parole to
invalidate plea). We note that the term “life sentence” is not    prisoners sentenced to parolable life, as explained by the
ambiguous. The United States Constitution does not require        Michigan Court of Appeals in People v. Lino:
judges to explain the meaning of “life sentence” and other
unambiguous terms during the plea colloquy in order to              The reality is that those who receive nonmandatory life
combat alleged misinformation that is not revealed on the           sentences are rarely paroled after ten years, and, in fact,
record. Cf. Boykin, 395 U.S. at 243-44 (requiring explicit          the majority of defendants sentenced to life
waiver of certain constitutional rights on the record when          imprisonment are never granted parole. . . . [F]rom 1986
court takes guilty plea); United States v. Hanley, 906 F.2d         through 1990, only seven prisoners serving parolable life
1116, 1121 (6th Cir. 1990) (holding that defendant was not          sentences were paroled. Of the 975 prisoners serving
entitled to relief on his claim of ineffective assistance of        such a term in 1990, only two were paroled. In 1991,
counsel where his counsel incorrectly advised him that he           only one prisoner serving a parolable life term was
would be eligible for parole in a third of the time he received     paroled. In 1992, again only one prisoner serving a
for a sentence because the court informed the defendant of the      parolable life term was paroled.
potential range of incarceration for his crime and advised him
that he would be sentenced under the guidelines); see also        539 N.W.2d at 549 (citations omitted). In view of these
Fed. R. Crim. P. 11(b) (setting forth the elements the federal    statistics, McAdoo argues that his “promised benefit will not
court must address when considering and accepting guilty          materialize.” He argues that he is entitled to a new trial or a
No. 01-2050                               McAdoo v. Elo      17    18    McAdoo v. Elo                                No. 01-2050

second chance to negotiate a plea bargain because he               Cir. 2003) (relying on Wiggins v. Smith, 539 U.S. 510
“expected he would be released on parole given the                 (2003)).
information he received concerning the workings of parole in
Michigan.”                                                            The Supreme Court has adopted a two-pronged test for
                                                                   determining whether a defendant received adequate assistance
  This argument fails, however, because McAdoo did obtain          of counsel. Strickland v. Washington, 466 U.S. 668, 687
his bargained-for benefit – the possibility of parole. Under       (1984). First, a defendant must show that counsel’s
Michigan law, a defendant convicted of first-degree murder         performance was deficient, which “requires a showing that
faces a sentence of mandatory non-parolable life, while            counsel made errors so serious that counsel was not
second-degree murder carries a sentence of parolable life or       functioning as the ‘counsel’ guaranteed the defendant by the
any term of years. Pursuant to his plea agreement, McAdoo          Sixth Amendment.” Id. at 687. The reviewing court should
was sentenced to three concurrent terms of parolable life. It      “indulge a strong presumption that counsel’s conduct falls
was not necessary for the prosecutors or the court to explain      within the wide range of reasonable professional assistance.”
the likelihood of parole to McAdoo. Hill, 474 U.S. at 56. A        Id. at 689. Second, a defendant must show that counsel’s
defendant’s mere expectation about the parole process is           deficient performance prejudiced the defendant. Id. at 687.
“simply no ground for habeas relief.” James, 56 F.3d at 667.       In order to satisfy the “prejudice” requirement in a plea
As the district court stated, “the relative reluctance of the      agreement context, “the defendant must show that there is a
Michigan Parole Board to grant parole to prisoners sentenced       reasonable probability that, but for counsel’s errors, he would
to life does not render his plea illusory.” We hold that           not have pleaded guilty and would have insisted on going to
McAdoo derived a benefit by avoiding a trial on the first-         trial.” Hill, 474 U.S. at 58-59.
degree murder charge which was punishable by life without
parole and receiving instead a sentence of life with the             McAdoo’s argument that his counsel was ineffective is
possibility of parole. As such, his plea was not illusory.         closely tied to his argument that his guilty plea was not
                                                                   knowing and voluntary. With respect to the ineffective
                              C.                                   assistance issue, his brief to this court states that he should
                                                                   receive an evidentiary hearing because the district court
  Finally, McAdoo claims that his counsel, Batchelor, was          erroneously relied on the state court’s finding that McAdoo
constitutionally ineffective for allegedly misinforming him of     understood the amount of prison time that he would be
the consequences of his plea. He requests that this issue be       required to serve. McAdoo’s reply brief simply states that the
remanded for an evidentiary hearing.                               district court erred in accepting the findings of the state trial
                                                                   court because McAdoo was denied a full and fair hearing on
  McAdoo presented his ineffective assistance of counsel           the issue. His brief in the district court states that the
claim in his application for leave to appeal in both the           incorrect advice establishes deficiency of performance, as a
Michigan Court of Appeals and Michigan Supreme Court.              result of which he entered a plea that was not knowing and
Neither court discussed the merits of the issue, and both          voluntary, and “that fact establishes the prejudice prong.”
denied leave to appeal in orders of one sentence. When a
state court fails to address the merits of a properly raised         Considerable case law supports a determination that giving
ineffective assistance of counsel issue, this court conducts its   erroneous advice about parole may constitute deficient
review de novo. Maples v. Stegall, 340 F.3d 433, 437 (6th          performance. Affirmative misstatements about parole
No. 01-2050                                     McAdoo v. Elo        19     20   McAdoo v. Elo                                No. 01-2050

possibilities are more objectively unreasonable than failure to             he would not have pleaded guilty and would have gone to
inform the defendant about the parole possibilities. James, 56              trial.
F.3d at 667 (noting that “this Court and others have
recognized that affirmatively erroneous advice of counsel as                   McAdoo’s exchange with the state judge at resentencing is
to parole procedure is much more objectively unreasonable                   at best ambiguous. While he suggested that he might have
than would be a failure to inform of parole consequences”).                 fought the case if he had known he would serve a life
When defense counsel grossly misinforms a defendant about                   sentence, he also said that he did not want his children to be
details of parole and the defendant relies on that                          subjected to a trial. Prior to this time McAdoo had been
misinformation, the defendant may have been deprived of his                 present at the preliminary hearing and was aware that the
constitutional right to counsel. See Strader v. Garrison, 611               evidence against him, which included his daughters’
F.2d 61, 65 (4th Cir. 1979). In Meyers v. Gillis, 142 F.3d 664              testimony, was overwhelming, a fact that the state courts were
(3d Cir. 1998), a habeas petitioner argued that his counsel was             entitled to take into account in determining whether he would
ineffective for giving him incorrect advice about parole                    have pled guilty in the absence of any erroneous advice rather
eligibility. The Third Circuit granted habeas relief, stating               than go to trial on first degree murder charges. McAdoo also
that “Meyers did not realize he was, in all reality, pleading               conceded that Batchelor and the court informed him that he
guilty to an offense that did not allow him to receive parole in            would receive three life sentences. He signed the plea form
the future.” Id. The court noted that, while a defendant does               indicating three life sentences. Moreover, Batchelor testified
not have a constitutional right to be provided with parole                  that he did not discuss the Lifer Law with McAdoo. Given
eligibility information prior to entering a plea, any                       this record and considering McAdoo’s ineffective assistance
information that is provided by defense counsel must be                     claim de novo, we conclude that McAdoo cannot establish the
accurate. Id. at 667 n.2.                                                   prejudice prong of his claim – that is, he cannot establish a
                                                                            reasonable probability that he would not have pled guilty in
   McAdoo argues that Batchelor was ineffective because he                  the absence of erroneous advice.
allegedly gave McAdoo incorrect information regarding the
terms of the plea agreement. He claims that Batchelor told                    McAdoo requests an evidentiary hearing on the ineffective
him that he would serve at most twenty years in prison.9                    assistance of counsel issue and argues that he did not receive
Assuming McAdoo’s claim to be true, his argument that his                   a “full and fair” hearing in state court. Under AEDPA, a
counsel’s performance was deficient may have merit.                         defendant who “failed to develop the factual basis of a claim
                                                                            in State court proceedings” cannot obtain an evidentiary
  McAdoo’s ineffective assistance claim fails in any event,                 hearing unless he satisfies two statutory exceptions not
however, because McAdoo cannot establish prejudice. The                     applicable here. 28 U.S.C. § 2254(e)(2). However, when a
prejudice prong of Strickland requires McAdoo to show that                  defendant diligently seeks an evidentiary hearing in the state
there is a reasonable probability that, but for counsel’s errors,           courts in the manner prescribed, but the state courts deny him
                                                                            that opportunity, he can avoid § 2254(e)(2)’s barriers to
                                                                            obtaining a hearing in federal court. Williams v. Taylor, 529
    9
      At his state evidentiary hearing, McAdoo’s counsel did not            U.S. 420, 437 (2000). A defendant fails to develop the factual
specifically ask Batchelor whether he made this statement to McAdoo.        basis of a claim only when he is at fault for failing to develop
Batchelor, however, implicitly denied the statement by saying that he and   the factual record in state court, as when he or his counsel has
McAdoo did not discuss the Lifer Law. M cAdoo, as previously noted,
did not testify.
                                                                            not exercised proper diligence, or greater fault, in failing to
No. 01-2050                                       McAdoo v. Elo          21

develop the record. Id. at 432 ; Moss v. Hofbauer, 286 F.3d
851, 858-59 (6th Cir.), cert. denied, 537 U.S. 1092 (2002).
The test for “failed to develop” is defined as a “lack of
diligence, or some greater fault, attributable to the prisoner or
the prisoner’s counsel” in his or her attempts to discover and
present a claim in the state court. Williams, 529 U.S. at 432;
Thompson v. Bell, 315 F.3d 566, 594 (6th Cir. 2003).
Diligence for purposes of § 2254(e)(2) depends upon
“whether the prisoner made a reasonable attempt, in light of
the information available at the time, to investigate and
pursue claims in the state court.” Williams, 529 U.S. at 435;
Thompson, 315 F.3d at 594. If the petitioner did not fail to
develop the facts in the state court, then the district court may
hold an evidentiary hearing. Williams, 529 U.S. at 433;
Thompson, 315 F.3d at 594; Moss, 286 F.3d at 859.
  Section § 2254(e)(2) may or may not preclude remand for
an evidentiary hearing on the ineffective assistance issue.10
We need not reach this issue, however. Even if we could
remand for an evidentiary hearing, doing so would be futile.
The present record appears to be complete. McAdoo points
to no fact that he could develop on remand that would result
in the granting of the writ. His affidavit in the district court
addresses his claims about erroneous advice but does not
contain anything that relates to the prejudice issue. Nor does
he identify any such evidence in his briefs; he simply relies
on his claim of an invalid plea to establish prejudice. Yet the
state court did not unreasonably find his plea to be valid.
Thus, McAdoo’s claim of prejudice fails.
                                    IV.
  For all the foregoing reasons, we affirm the district court’s
denial of McAdoo’s petition for writ of habeas corpus.

    10
       Addressing the effect o f § 22 54(e)(2) on M cAd oo’s request for an
evidentiary hearing would require us to consider the state court’s
evidentiary rulings and M cAdoo ’s decision not to testify at the state court
hearing on his motion to withdraw his plea.
