Submitted: March 10, 2017
from United States District Court for the District of North
Dakota - Fargo
LOKEN, MURPHY, and BENTON, Circuit Judges.
BENTON, Circuit Judge.
rejecting two plea offers, Showin K. Davis pled guilty to one
count of conspiracy to possess with intent to distribute, in
violation of 21 U.S.C. §§ 841(a)(1) and 846. The
district court sentenced him to 120 months' imprisonment.
Davis moved to vacate the conviction and sentence under 28
U.S.C. § 2255, claiming ineffective assistance of
counsel. The district court granted the motion in part,
ordering the government to reoffer an earlier plea deal. The
jurisdiction under 28 U.S.C. §§ 1291 and 2253, this
court reverses in part and remands.
was indicted for conspiring to distribute controlled
substances, a charge with a mandatory ten-year sentence. The
government made three plea offers; the second and third are
at issue here.
first, offered months before trial, was a standard
cooperation agreement. Daniel E. Hopper, Davis's
appointed attorney, explained the agreement to him. He
before trial, the government offered Davis a five-year deal
(the second offer). Hopper recommended he take it, explaining
a jury likely would find him guilty. He rejected it. They
again discussed the five-year deal the first morning of
trial. Davis showed no interest in it.
second day of trial, the government made a third offer. It
had a mandatory ten-year sentence, but limited the type and
quantity of controlled substances attributable to Davis. He
accepted. The district court sentenced him to 120 months.
moved to vacate his conviction and sentence under 28 U.S.C.
§ 2255, alleging ineffective assistance of counsel. He
asserted four claims. The district court found they
cluster[ed] around two separate theories: (a) during the
course of the pretrial proceedings Hopper did not afford
Davis an opportunity to review discovery and did not file any
pretrial motions; and (b) Hopper failed to provide Davis with
the information to make an informed decision on the proposed
plea agreement and ultimate change of plea.
an evidentiary hearing, the court rejected the first theory,
but granted the motion on the second:
While Hopper's representation was not entirely
ineffective, during the immediate pretrial preparation phase,
Hopper failed to effectively communicate the law of
conspiracy in a way that Davis was capable of comprehending;
Hopper failed to explain the risks and benefits of the plea
offer in a way that Davis could comprehend; and Hopper
misinformed Davis of his eligibility for the safety valve.
These failures and conveyance of misinformation constitute
ineffective assistance of counsel within the meaning of
Strickland v. Washington.
court vacated the conviction and sentence. It ordered the
government to reoffer the five-year deal. The government
court reviews de novo ineffective assistance claims under
§ 2255, and the underlying factual findings for clear
error. United States v. Regenos, 405 F.3d 691,
692-93 (8th Cir. 2005). To establish ineffective assistance
during plea negotiations, the petitioner must show
"'counsel's representation fell below an
objective standard of reasonableness'" and
"that such deficient performance prejudiced" the
defense. Id. at 693, quoting Strickland v.
Washington, 466 U.S. 668, 688 (1984). Prejudice requires
"a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would
have been different." Strickland, 466 U.S. at
694. "[S]crutiny of counsel's performance must be
highly deferential." Hamberg v. United States,
675 F.3d 1170, 1172 (8th Cir. 2012) (internal quotation marks
omitted). There is a "strong presumption that
counsel's conduct falls within the wide range of
reasonable professional assistance." United States
v. Taylor, 258 F.3d 815, 820 (8th Cir. 2001), citing
Strickland, 466 U.S. at 689.
district court concluded Hopper was ineffective because he
did not communicate "the law of conspiracy" and
"the risk and benefits of the plea offer in a way that
Davis could comprehend." The court found:
"At the outset, it should be noted that the claim that
Hopper never spent a sufficient amount of time consulting
with Davis would be easily disposed of in the ordinary case.
Hopper spent more than 27 hours in conference with Davis over
the course of pretrial preparation. Under ordinary
circumstances, this length of time is typically sufficient to
meet with a criminal defendant in a case of this
record does not make plain, but it appears that from the
outset that Davis had limited interest in cooperating with
the prosecution. It is clear that from the very earliest
stages of his representation of Davis, Hopper tried to
convince Davis that cooperation was the best strategy. The
record also makes plain that Davis believed that the United
States would have difficulty both positively identifying him
as a person involved in the conspiracy and establishing a
role for ...