               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 19a0568n.06

                                       Case No. 18-1297

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                               FILED
                                                                         Nov 13, 2019
RICHARD DEAN WOOLSEY,                               )                DEBORAH S. HUNT, Clerk
                                                    )
       Petitioner-Appellant,                        )
                                                    )     ON APPEAL FROM THE UNITED
v.                                                  )     STATES DISTRICT COURT FOR
                                                    )     THE EASTERN DISTRICT OF
UNITED STATES OF AMERICA,                           )     MICHIGAN
                                                    )
       Respondent-Appellee.                         )




       BEFORE: SUTTON, COOK, and THAPAR, Circuit Judges.

       COOK, Circuit Judge. After rejecting a plea discussed at a status conference of a

sentencing range of 33 to 41 months, a jury convicted Richard Dean Woolsey of mail and wire

fraud, resulting in a sentence of 90 months in prison. Woolsey later came to believe from a post-

incarceration review of his counsel’s file that his lawyer thought—but never told him—that the

government’s planned presentation at sentencing might lead to a 27-to-33-month sentence. On the

strength of this disclosure in the file, Woolsey moved to vacate his sentence for ineffective

assistance. Because the district court properly found an absence of evidence to support his

argument regarding a sentencing scenario kept from him by his lawyer, we AFFIRM the denial of

Woolsey’s motion.




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                                               I.

       The government charged Woolsey with Conspiracy to Commit Mail and Wire Fraud and

Aiding and Abetting Wire Fraud for a fraudulent vacation-property-purchasing scheme he

pursued. United States v. Woolsey, 638 F. App’x 479 (6th Cir. 2016). Court-appointed counsel

Edward Wishnow met with prosecutor Karen Reynolds on behalf of Woolsey to explore potential

plea scenarios. That discussion centered on various sentencing ranges, depending on the amount

of loss the court determined to have been caused by Woolsey’s fraud. Wishnow took notes as he

and Reynolds talked. It is those notes that include the numbers “27-33”—a line that led Woolsey

to surmise that the government had privately offered to allow Woolsey to plead to that range, but

Wishnow never told him.

       What he did know from attending a status conference four days later was that the

government offered to allow Woolsey to plead to conduct “confined to the four corners of the

indictment.” When Judge Cohn asked about the corresponding sentencing range, Reynolds

responded, “Mr. Wishnow and I talked about that last week. I thought it was 33 to 41 months. He

thinks it’s -- ” and the court cut her off. Observing the significant difference between 33 to 41

months and the statutory maximum of seven years, Judge Cohn asked Woolsey if he understood

the consequences of rejecting a plea. Woolsey replied, “I do.”

       After Woolsey requested a new attorney, the court permitted Wishnow to withdraw, and

appointed new counsel who took the case to trial some seven months later. The jury convicted

Woolsey, and with a downward departure on the guidelines range of 97 to 121 months the court

sentenced him to 90 months.




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Case No. 18-1297, Woolsey v. United States


       Some years later, after requesting and receiving Wishnow’s file notes, Woolsey moved to

vacate his sentence claiming an ineffective assistance, grounded on Wishnow never having told

him about a 27-to-33-month sentencing scenario. With his file Wishnow sent a cover letter:

       These notes reflect plea offers for potential plea scenarios depending on amount of
       loss. One scenario had a loss of more than $400,000 but less than one million, which
       would carry a potential sentence on a plea of guilty of 27 to 33 months.

       The other scenario had a loss of more than one million, which carried a potential
       sentence on a plea of guilty of 33 to 41 months.

       The other scenario was potential sentencing implications if you went to trial with a
       loss of greater than 7 million, which results in a potential guideline range of 87 to
       108 months.

       The district court denied Woolsey’s motion to vacate, declining to hold a hearing,

premising denial on: (1) the 2012 status conference, at which Woolsey stated he understood the

consequences of rejecting the offered plea; and (2) Wishnow’s “detailed notes about the plea offers

discussed with government[.]” We granted a certificate of appealability.

                                                II.

       Though we review a district court’s denial of a Section 2255 motion de novo, we will

overturn its factual findings only if clearly erroneous. Huff v. United States, 734 F.3d 600, 605

(6th Cir. 2013); see also Goward v. United States, 569 F. App’x 408, 410 (6th Cir. 2014). “The

ultimate question of whether a defendant received ineffective assistance of counsel is a mixed

question of law and fact, which we also review de novo.” Logan v. United States, 910 F.3d 864,

868 (6th Cir. 2018), cert. denied, 139 S. Ct. 1589 (2019).

       We review a district court’s denial of an evidentiary hearing on a Section 2255 motion for

abuse of discretion. Martin v. United States, 889 F.3d 827, 831 (6th Cir. 2018).




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                                               III.

       To prevail on an ineffective assistance of counsel claim, a defendant must show: (1) that

counsel’s performance was so deficient that “counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment,” and (2) that the poor performance “prejudiced

the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

                                   A. Deficient Performance

       We measure deficient performance “against an objective standard of reasonableness under

prevailing professional norms.” Logan, 910 F.3d at 869 (quoting Rompilla v. Beard, 545 U.S. 374,

380 (2005)).

       Woolsey contends that Wishnow believed—but never told him—that his sentencing

exposure from a guilty plea would be 27 to 33 months with conduct “limited to the four corners of

the indictment” and the sentence to be decided by the court. Reynolds’s truncated statement that

“I thought [the sentencing range would be] 33 to 41 months. [Wishnow] thinks it’s -- ” supposedly

shows that multiple sentencing scenarios remained in play. Specifically, according to Woolsey,

Reynolds envisioned a 33-to-41-month sentence if she convinced the district court that Woolsey

caused $1 million to $7 million in monetary loss, while Wishnow predicted 27 to 33 months upon

convincing the court that Woolsey caused only $400,000 to $1 million in loss. But because

Wishnow never reviewed the possibility of a 27-to-33-month sentence with him, Woolsey argues,

he could not make an informed judgment regarding whether to enter a plea—meaning Wishnow

performed deficiently.

        Woolsey’s take on events runs into several problems.          First, he speculates about

Wishnow’s sentencing view and Wishnow’s silence at the status conference casts doubt on this

interpretation. Neither Wishnow’s notes nor anything else in the record substantiates this theory.


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Case No. 18-1297, Woolsey v. United States


       While Wishnow may have harbored a vision that he could persuade the court to sentence

at the 27-to-33-month range, no court has yet imposed a constitutional duty for a lawyer to review

such hoped-for ranges. Nor has any court found that an attorney who did not “f[e]ll below an

objective standard of reasonableness” for competent counsel. Strickland, 466 U.S. at 688.

Woolsey’s novel theory would expand the Sixth Amendment’s reach far beyond its present scope,

that is counsel must inform clients of formal plea offers, Missouri v. Frye, 566 U.S. 134, 145

(2012), and provide effective assistance to help clients decide whether to accept, Lafler v. Cooper,

566 U.S. 156, 168 (2012). This includes accurately explaining the likely sentencing range if the

defendant declines to plead guilty. See Miller v. United States, 561 F. App’x 485, 495 (6th Cir.

2014) (remanding for evidentiary hearing where client declined plea following erroneous advice

that client was not subject to mandatory minimum sentence); Smith v. United States, 348 F.3d 545,

553 (6th Cir. 2003) (same where counsel failed to “inform[ his client] of the dramatically higher

sentence potential” of going to trial). But it does not require an attorney, having discussed multiple

sentencing scenarios, to explain to the client which scenario he hopes will result. Finding deficient

performance here would constitutionalize such a duty; we will not so find.

       Besides, Woolsey’s briefing painted a different picture of the case. His submissions allege

that, at the October 2012 meeting, Reynolds offered two plea options, and that Wishnow provided

constitutionally inadequate performance by telling him about only one. Analogizing to Frye,

Woolsey argues that he and Galin Frye both received formal plea offers from the government, and

that his counsel, like Frye’s, failed to inform him of that offer.

       The government does not disagree on the law, only the facts.               According to the

government’s brief, Reynolds only ever offered Woolsey one plea, as shown by: (1) Reynolds’s

statement at the October 2012 status conference mentioning only the 33-to-41-month range and


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Wishnow’s ensuing silence; (2) a November 2016 letter from Wishnow to Woolsey stating that

the status conference transcript provides “the best source of the Government’s plea offer”; and

(3) the August 2016 cover letter from Wishnow to Woolsey accompanying Wishnow’s case files.

In the August letter, Wishnow explains that he and Reynolds discussed “plea offers for potential

plea scenarios depending on amount of loss.” The government keys on the words “potential” and

“scenarios,” arguing that these evince the reality—preliminary discussions.

       Woolsey posits, however, that two options were on the table at the meeting. He points to

two sources of circumstantial evidence: Wishnow’s notes and his use of the “offers” in the

accompanying letter. Neither supports Woolsey’s stance.

       Pointing to Wishnow’s notes, Woolsey maintains that Wishnow having neither “circled,

starred, [n]or otherwise set apart [the 33-to-41-month plea] as the one offer coming out of the

meeting” shows that Reynolds offered both a higher and lower plea number. Again, Woolsey

speculates. Because he bears the burden of establishing Wishnow’s deficient performance, United

States v. Dubrule, 822 F.3d 866, 881 (6th Cir. 2016), Woolsey’s unsupported assertion fails to

carry the point.

       Woolsey also seizes on the phrase “plea offers” in Wishnow’s cover letter as demonstrating

that Reynolds communicated multiple offers to Wishnow. But the wording of that letter—sent

nearly four years after Wishnow and Reynolds met—also labelled them “plea scenarios,”

dependent on loss amounts. Cf. United States v. Strother, 509 F. App’x 571, 575 (8th Cir. 2013)

(ruling that attorney’s statement, made nearly three years after plea bargaining, “that he ‘kept [the

defendant] advised of all negotiations and relayed all plea offers’” did not support allegation of

second plea offer never conveyed by counsel (emphasis added)). Besides, the transcript of the

status conference held just four days after the meeting supports the government’s account. When


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the district court asked about plea negotiations, Reynolds mentioned only a 33-to-41-month range.

Wishnow neither corrected her nor mentioned a 27-to-33-month scenario.

       The government labels Woolsey’s supposition as “illogical” and analogizes to a car dealer

offering to sell a vehicle for either $10,000 or $8,000, whichever the buyer prefers. Woolsey

submits his own analogy: two offers to sell a car “for either $10,000 or $8,000, depending on the

outcome of an independent appraisal.” True, the prosecution in Frye offered “a choice of two plea

bargains”: three years in prison, with all but ten days deferred, on a felony charge; or 90 days in

prison for a misdemeanor. 566 U.S. at 138–39. But Woolsey’s theory includes no additional

feature or aspect that would equate to the trade-off in Frye—months in prison offset by a less

onerous criminal record.

       According to Woolsey, in opposing his motion to vacate, the government conceded that

Reynolds offered multiple pleas. He repeatedly quotes a passage in the government’s brief:

“Attorney Edward Wishnow who represented Woolsey at the time, has detailed notes about the

plea offers discussed with government.” Woolsey sees this as an admission that the government

offered multiple pleas. But context matters. The quoted sentence appears at the end of a paragraph

about the 33-to-41-month scenario and follows the statement that “a plea offer had been made.”

To warrant recognition the admission must be “deliberate” or “clear.” Commercial Money Ctr.,

Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 336 (6th Cir. 2007); see also Wolfington v.

Reconstructive Orthopaedic Assocs. II PC, 935 F.3d 187, 198 (3d Cir. 2019) (explaining that

“an admission must be unequivocal to be binding” (citation and quotation marks omitted)). This

admission was neither.

       Woolsey alternatively contends that, by not raising it below, the government waived its

argument that Reynolds offered only one plea. The government, however, advanced the same


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argument in the district court as it does here: that, as shown by her statement at the status

conference, Reynolds offered only a 33-to-41-month plea.

       Woolsey also argues that this court’s order granting him a certificate of appealability

(“COA”) acknowledged two plea offers. Sure, the order stated, “[T]he record does show that [the

27-to-33-month] offer was made, as demonstrated by Wishnow’s letter to Woolsey[.]” But in

analyzing a request for a COA, this court considers only “whether the applicant has shown that

jurists of reason could disagree with the district court’s resolution of his constitutional claims or

that jurists could conclude the issues presented are adequate to deserve encouragement to proceed

further.” Buck v. Davis, 137 S. Ct. 759, 773 (2017). In this case, as in all COA decisions, we did

so without “full consideration of the factual or legal bases adduced in support of the claims.”

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

       Arguing that the government made at least a tentative second plea offer, Woolsey presses

for habeas relief even if Reynolds merely mentioned but did not formally offer the 27-to-33-month

scenario. He points first to the Michigan Rules of Professional Conduct, arguing that Wishnow’s

failure to keep him apprised of ongoing negotiations violated those rules and amounted to

ineffective assistance. But even if Wishnow’s conduct was professionally questionable (and we

don’t mean to imply it was) not every ethical violation equates to the constitutional violation of

ineffective assistance of counsel. See Nix v. Whiteside, 475 U.S. 157, 165 (1986); accord Fox v.

Hurley, 149 F. App’x 333, 340 (6th Cir. 2005) (explaining that ethically questionable conversation

by defense counsel “does not compel a finding that [defendant] received the ineffective assistance

of counsel”). Woolsey next relies on Griffin v. United States, which reversed the denial of a habeas

claim where the petitioner alleged that he would have accepted the government’s “tentative” and

“contingent” plea offer had his counsel conveyed it. 330 F.3d 733, 738–39 (6th Cir. 2003). But


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Griffin does not go as far as Woolsey would like. There, the government conceded that it made

“at least a tentative plea offer,” and that only prejudice—rather than the type of offer—was at

issue. Id. at 738. Cf. Wright v. Spaulding, 939 F.3d 695, 702 (6th Cir. 2019) (explaining that

“questions which merely lurk in the record, neither brought to the attention of the court nor ruled

upon, are not to be considered as having been so decided as to constitute precedents”). And while

the “contingent” plea offer was available for Phillip Griffin to accept, Griffin, 330 F.3d at 738,

Woolsey provides no evidence that the alleged 27-to-33-month scenario reached that stage. In any

event, the Griffin court did not grant the petitioner’s motion; it instead reversed for an evidentiary

hearing. Id. at 739.

       For these reasons, we agree with the district court that Woolsey falls short of showing

constitutionally deficient performance. We thus affirm the district court’s denial of his Section

2255 motion.

                                     B. Evidentiary Hearing

       A petitioner bears the burden of “show[ing] his right to a hearing,” Valentine v. United

States, 488 F.3d 325, 334 (6th Cir. 2007), but that burden “is relatively light,” Turner v. United

States, 183 F.3d 474, 477 (6th Cir. 1999). See also Valentine, 488 F.3d at 334 (describing

petitioner’s burden as “significantly lower than his burden to show he is entitled to § 2255 relief”).

Ordinarily, a habeas court must hold a hearing when a factual dispute underlies a petitioner’s claim

for relief. Clark v. Warden, 934 F.3d 483, 494 (6th Cir. 2019) (citing Huff, 734 F.3d at 607).

“[W]hen presented with factual allegations, ‘a district court may only [forgo] a hearing where the

petitioner’s allegations cannot be accepted as true because they are contradicted by the record,

inherently incredible, or conclusions rather than statements of fact.’” Martin, 889 F.3d at 832

(quoting MacLloyd v. United States, 684 Fed. App’x 555, 559 (6th Cir. 2017)).


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Case No. 18-1297, Woolsey v. United States


       Woolsey contends that his affidavit creates a factual dispute regarding the nature and

number of the plea(s) offered to him. He relies primarily on Wishnow’s cover letter referencing

“plea offers,” and then adds his opinion: “Nothing about that evidence or Mr. Woolsey’s claim is

‘inherently incredible.’” This dispute, he argues, entitles him to an evidentiary hearing.

       For the reasons discussed above, Woolsey is wrong. His allegations are “contradicted by

the record,” given Reynolds’s status conference statement identifying only the 33-to-41-month

range and Wishnow’s ensuing silence. And they are “inherently incredible” because logic

precludes simultaneously offering two pleas, one clearly more favorable than the other. Even if

Woolsey could establish that Wishnow hoped the government’s “four corners” offer would lead

to a 27-to-33-month sentence, that showing would not warrant habeas relief. Though the burden

of establishing entitlement to an evidentiary hearing “is relatively light,” Turner, 183 F.3d at 477,

Woolsey fails to carry it. For these reasons, we uphold the district court’s denial of an evidentiary

hearing on Woolsey’s Section 2255 motion.

                                                IV.

       We AFFIRM.




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