Eddie D. Smith v. United States of America

*The Honorable David M. Lawson, United States District Judge for
the Eastern D istrict of M ichigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0387P (6th Cir.)
File Name: 03a0387p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
EDDIE D. SMITH,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
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No. 01-5215
Appeal from the United States District Court
for the Eastern District of Kentucky at Lexington.
No. 99-00086—Karl S. Forester, Chief District Judge.
Argued: March 12, 2003
Decided and Filed: November 3, 2003
Before: MOORE and CLAY, Circuit Judges; LAWSON,
District Judge.*
_________________
COUNSEL
ARGUED: Cheryl J. Sturm, Chadds Ford, Pennsylvania, for
Appellant. John Patrick Grant, ASSISTANT UNITED
2 Smith v. United States No. 01-5215
STATES ATTORNEY, Lexington, Kentucky, for Appellee.
ON BRIEF: Cheryl J. Sturm, Chadds Ford, Pennsylvania,
for Appellant. Charles P. Wisdom, Jr., ASSISTANT
UNITED STATES ATTORNEY, Lexington, Kentucky, for
Appellee.
_________________
OPINION
_________________
DAVID M. LAWSON, District Judge. The petitioner
appeals the denial of his motion to vacate sentence filed under
28 U.S.C. § 2255. He was convicted by a jury of several
counts of sexual misconduct perpetrated against female
inmates at a federal prison while he was employed at the
facility as a prison guard. He also was found guilty of lying
during a hearing into his misconduct before the Merit
Systems Protection Board. The principal ground for Smith’s
motion is that his attorney was constitutionally ineffective
because he failed to properly advise and counsel Smith
concerning a pretrial guilty plea offer made by the
government that would have resulted in a sentence
considerably shorter than the 262 months Smith ultimately
received. We believe that the factual record before the district
court is not sufficient to properly adjudicate the motion. We
therefore vacate the lower court’s judgment and remand for
an evidentiary hearing.
I.
On April 20, 1995, a federal grand jury sitting in the
Eastern District of Kentucky returned a multi-count
indictment against petitioner Eddie D. Smith. A superseding
indictment was handed down on August 16, 1995, which
charged Smith with eight counts of sexual misconduct and
one count of perjury. Counts one through five alleged that
Smith engaged in sexual acts by force with four different
inmates while he was employed as a correctional officer at the

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No. 01-5215 Smith v. United States 3
Federal Medical Center (FMC) in Lexington, Kentucky, all in
violation of 18 U.S.C. § 2241(a)(1). Counts six and seven
charged that Smith engaged in sex acts with one of the
previously-named inmates while she was under his authority,
contrary to 18 U.S.C. § 2243(b). Count eight alleged that
Smith engaged in sexual contact with yet a different inmate
while she was officially detained and under his supervision in
violation of 18 U.S.C.§ 2244(a)(4). Finally, count nine
alleged that, on or about January 12, 1994, Smith gave false
material testimony under oath before United States
Administrative Law Judge Jack E. Salyer, during a Merit
Systems Protection Board proceeding concerning the removal
of Smith from his position as a correctional officer at the
Lexington Medical Center, contrary to 18 U.S.C. § 1621.
At his arraignment, Smith was represented by the same
attorney that had appeared for him at the prior proceeding
before the Merit Systems Protection Board in which Smith
was removed from his job with the Bureau of Prisons on
account of the same misconduct that led to his indictment.
Smith contends, and the government does not dispute, that
sometime before the indictment was returned, the prosecution
offered to allow Smith to plead guilty to a one-count
information charging perjury with a maximum recommended
sentence of twenty months, in exchange for abandoning the
prosecution of the sexual misconduct offenses. Smith did not
accept that offer. About one month after his arraignment, his
lawyer withdrew and attorney Andrew M. Stephens was
appointed to represent Smith. Stephens avers that the guilty
plea offer remained open until approximately ten days before
trial.
Trial commenced on September 25, 1995. Smith testified
on his own behalf, and maintained his innocence of the
charges. However, the jury convicted Smith as charged on all
counts but count seven, for which he was found not guilty.
On March 8, 1996, Smith was sentenced to multiple terms of
262 months imprisonment on counts one, two, three and five,
with thirty-six months of supervised release to follow; twelve
4 Smith v. United States No. 01-5215
months imprisonment on count six, with three months of
supervised release; six months imprisonment on count eight,
with three years of supervised release; and sixty months
imprisonment on count nine, with three years of supervised
release. Count four was dismissed on the government’s
motion. The sentences were all to be served concurrently.
We affirmed Smith’s convictions on direct appeal on
March 20, 1998 in an unpublished opinion. United States v.
Smith, No. 96-5385, 1998 WL 136564 (6th Cir. Mar. 19,
1998).
On March 5, 1999, the petitioner filed a motion seeking to
vacate, set aside, or correct his sentence pursuant to 28 U.S.C.
§ 2255. In the motion Smith alleges that defense counsel was
ineffective for failing to advise him to accept the twenty-
month guilty plea agreement offered by the government, and
for failing to interview and call as a defense witness a FMC
inmate who would have testified that the government’s
witnesses fabricated the stories about Smith. Smith further
contended in the motion that his convictions violated the Fifth
Amendment’s prohibition against double jeopardy.
The government responded to the motion on April 20,
1999, attaching an affidavit of attorney Stephens. The
affidavit states that Stephens’ conversations with predecessor
counsel indicated that Smith was aware, prior to the filing of
the indictment, that an offer was on the table for a guilty plea
to the perjury charge. Stephens Aff. at 1, J.A. at 69. The
affidavit further states that “Mr. Smith had been fully active
in participation of the pension denial hearings and his
potential wrongful termination. It is also relevant to the
undersigned that Mr. Smith’s wife accompanied him on every
office conference, discovery conference, and discovery
investigation conference of which there were at least fifteen
or twenty.” Ibid. “At no time,” Stephens insists, “during the
course of lengthy investigations, review of literally reams of
documents and travel between various Federal Correctional
Institutions accomplished by the undersigned in investigation
and defense of this case, did Mr. Smith ever consider the

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No. 01-5215 Smith v. United States 5
entry of a guilty plea.” Stephens Aff. at 2, J.A. at 70. The
affidavit speculates that “Smith at some point was attempting
to save face in front of his wife during the pendency of their
marriage and thus, that maybe [sic] the motivation for his
denial of any desire to entry [sic] a guilty plea.” Ibid.
Stephens also states, somewhat cryptically, that “[i]t would be
incorrect for Mr. Smith to assert that their [sic] wasn’t some
talk of a guilty plea since the offer was made and held open
by the United States until approximately ten days before
trial.” Ibid.
The evidence against Smith, Stephens insists, was
overwhelming. He further states that he prepared with Smith
more than he has with any other client. When the guilty plea
offer was discussed, “it was discussed with disgust.”
Stephens Aff. at 4, J.A. at 72. There was no doubt in his
mind, Stephens states, that Smith “never considered a plea
though a plea was discussed.” Stephens Aff. at 3-4, J.A. at
71-72. “[N]ever ever was undersigned counsel directed to
explore negotiated plea offers even though same was made.”
Stephens Aff. at 3, J.A. at 71.
On March 28, 2000, Magistrate Judge James B. Todd filed
a report recommending that the motion be denied. After
considering the petitioner’s exceptions to that report, and the
government’s response to those exceptions, the district court
adopted the report in an Opinion and Order filed January 11,
2001. No evidentiary hearing was conducted in the lower
court. The district court denied the motion on the ground that
the petitioner had failed to show prejudice as required by
Strickland v. Washington, 466 U.S. 668, 694 (1984), because
there was no “objective evidence in the record demonstrating
a reasonable probability that, but for his counsel’s lack of
advice, he would have accepted the government’s offer.”
Opinion and Order at 3; J.A. at 112. The district court
reasoned that Smith was aware of the government’s offer and
rejected it, and instead protested his innocence at trial (which
resulted in a two-point offense level enhancement for
obstruction of justice), and therefore it was unlikely that he
6 Smith v. United States No. 01-5215
would have pleaded guilty even if he had received proper
advice from his attorney. Ibid. The district court also
rejected Smith’s claim that Stephens was ineffective for
failing to interview a witness, and that prosecuting Smith
following the administrative job-removal proceedings
violated the Double Jeopardy Clause.
The district court’s judgment against the petitioner was
timely appealed on February 5, 2001. The issues raised relate
only to the question of whether Stephens’ advice to Smith
concerning the government’s guilty plea offer was
constitutionally adequate, and whether the district court erred
by not conducting an evidentiary hearing to resolve that
question.
II.
On appeal of the district court’s denial of a motion to
vacate, alter, or amend sentence pursuant to 28 U.S.C. § 2255,
we review the lower court’s legal conclusions de novo and its
factual findings for clear error. Nagi v. United States, 90 F.3d
130, 134 (6th Cir. 1996). The district court’s decision
whether to hold an evidentiary hearing on a Section 2255
motion is reviewed under the abuse of discretion standard.
Arredondo v. United States, 178 F.3d 778, 782 (6th Cir.
1999).
A prisoner who files a motion under Section 2255
challenging a federal conviction is entitled to “a prompt
hearing” at which the district court is to “determine the issues
and make findings of fact and conclusions of law with respect
thereto.” 28 U.S.C. § 2255. The hearing is mandatory
“unless the motion and the files and records of the case
conclusively show that the prisoner is entitled to no relief.”
Fontaine v. United States, 411 U.S. 213, 215 (1973) (citation
omitted). See also Blanton v. United States, 94 F.3d 227, 235
(6th Cir. 1996) (holding that “evidentiary hearings are not
required when . . . the record conclusively shows that the
petitioner is entitled to no relief.”). The statute “does not

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No. 01-5215 Smith v. United States 7
require a full blown evidentiary hearing in every instance . . . .
Rather, the hearing conducted by the court, if any, must be
tailored to the specific needs of the case, with due regard for
the origin and complexity of the issues of fact and the
thoroughness of the record on which (or perhaps, against
which) the section 2255 motion is made.” United States v.
Todaro, 982 F.2d 1025, 1030 (6th Cir. 1993). Furthermore,
“when the trial judge also hears the collateral proceedings . . .
that judge may rely on his recollections of the trial in ruling
on the collateral attack.” Blanton, 94 F.3d at 235 (citing
Blackledge v. Allison, 431 U.S. 63, 74 n.4 (1977)). However,
“[w]here there is a factual dispute, the habeas court must hold
an evidentiary hearing to determine the truth of the
petitioner's claims.” Turner v. United States, 183 F.3d 474,
477 (6th Cir. 1999) (citing Paprocki v. Foltz, 869 F.2d 281,
287 (6th Cir.1989)). We have observed that a Section 2255
petitioner’s burden “for establishing an entitlement to an
evidentiary hearing is relatively light.” Id. at 477.
Here, Smith seeks a hearing on the question of whether his
attorney was constitutionally ineffective. Such claims are
guided by the now familiar two-element test set forth by the
Supreme Court in Strickland v. Washington, 466 U.S. 668
(1984). First, a petitioner must prove that counsel’s
performance was deficient, which “requires showing that
counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. at 687. The Court explained that to
establish deficient performance, a petitioner must identify acts
that were “outside the wide range of professionally competent
assistance.” Id. at 690. Second, a petitioner must show that
counsel’s deficient performance prejudiced the petitioner. A
petitioner may establish prejudice by “showing that counsel’s
errors were so serious as to deprive the defendant of a fair
trial.” Id. at 687.
The Supreme Court has applied this test to evaluate the
performance of attorneys representing guilty-pleading
defendants, with special attention to the second element:
8 Smith v. United States No. 01-5215
The second, or “prejudice,” requirement . . . focuses on
whether counsel's constitutionally ineffective
performance affected the outcome of the plea process. In
other words, in order to satisfy the “prejudice”
requirement, the defendant must show that there is a
reasonable probability that, but for counsel’s errors, he
would not have pleaded guilty and would have insisted
on going to trial.
Hill v. Lockhart, 474 U.S. 52, 59 (1985).
In this case, the trial court summarily rejected Smith’s
ineffective assistance of counsel claim for failure of proof on
this second element. The lower court found that a defendant’s
“own self-serving testimony” that he would have pleaded
guilty if properly advised is not sufficient; in addition, the
lower court required that the defendant also present “objective
evidence” to establish prejudice. Opinion and Order at 3; J.A.
at 112. However, we recently stated: “Although some circuits
have held that a defendant must support his own assertion that
he would have accepted the offer with additional objective
evidence, we in this circuit have declined to adopt such a
requirement.” Griffin v. United States, 330 F.3d 733, 737
(6th Cir 2003) (quoting Dedvukovic v. Martin, 36 Fed.Appx.
795, 798 (6th Cir.2002) (unpublished)).
The district judge in this case, who also presided over
Smith’s trial, found that Smith was aware of the plea offer,
rejected it, and maintained his innocence throughout the
proceedings, including to the point of testifying under oath at
trial that he did not engage in the conduct described by his
accusers, which earned him a two-point enhancement of his
offense level for obstruction of justice at sentencing. This
point was addressed in Griffin as well, where we observed
that defendants may enter a guilty plea while maintaining
innocence under North Carolina v. Alford, 400 U.S. 25, 33
(1970) (stating that “reasons other than the fact that he is
guilty may induce a defendant to so plead . . . and he must be
permitted to judge for himself in this respect”); many

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No. 01-5215 Smith v. United States 9
defendants believe that they must maintain innocence right up
to the point of pleading guilty in order to fortify their
bargaining positions; and the Fifth Amendment gives
defendants the right to assert their innocence throughout a
trial. Griffin, 330 F.3d at 738. We concluded, therefore, 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. . . . These declarations of innocence are . . . not
dispositive on the question.” Ibid. Protestations of innocence
throughout trial are properly a factor in the trial court’s
analysis, however they do not, by themselves, justify
summary denial of relief without an evidentiary hearing. See
Cullen v. United States, 194 F.3d 401, 404-07 (2d Cir. 1999).
In Griffin, there was no dispute over the fact that the
petitioner’s trial counsel failed to convey a pretrial guilty plea
offer, and that the petitioner proceeded to trial, where he
testified that he was innocent. The panel noted that the
substantial disparity between the five-year sentence offered
by the government and the 156 months Griffin ultimately
received was enough to warrant further exploration of the
issue at an evidentiary hearing of the question of the
reasonable likelihood that Griffin, competently advised,
would have pleaded guilty. Griffin, 330 F.3d at 739. Other
panels in this and other circuits have pointed to the disparity
between the plea offer and the potential sentence exposure as
strong evidence of a reasonable probability that a properly
advised defendant would have accepted a guilty plea offer,
despite earlier protestations of innocence. See Magana v.
Hofbauer, 263 F.3d 542, 552-53 (6th Cir. 2001) (finding the
difference between a ten- and twenty-year sentence
significant); United States v. Day, 969 F.2d 39 (3d Cir. 1992)
(finding ineffective assistance of counsel when trial counsel
mistakenly described the penalties at trial as ten years rather
than the twenty-two years the defendant received at
sentencing, and where a plea offer of five years had been
made); United States v. Gordon, 156 F.3d 376, 377-81 (2d
Cir. 1998) (holding that the wide disparity between the ten-
year sentence recommended by the plea agreement and the
10 Smith v. United States No. 01-5215
seventeen-and-a-half years the defendant did receive was
objective evidence that a plea would have been accepted).
In this case, the petitioner concedes that he was aware of
the government’s guilty plea offer. However, citing Boria v.
Keane, 99 F.3d 492 (2d Cir. 1996), Smith contends that his
attorney was ineffective because, in light of the overwhelming
evidence of guilt, the attorney did not insist that Smith plead
guilty and accept the twenty-month plea bargain. We do not
believe this to be a proper basis upon which to find deficient
performance by defense counsel. The decision to plead guilty
– first, last, and always – rests with the defendant, not his
lawyer. Although the attorney may provide an opinion on the
strength of the government’s case, the likelihood of a
successful defense, and the wisdom of a chosen course of
action, the ultimate decision of whether to go to trial must be
made by the person who will bear the ultimate consequence
of a conviction.
On the other hand, the attorney has a clear obligation to
fully inform her client of the available options. We have held
that the failure to convey a plea offer constitutes ineffective
assistance, see Griffin, 330 F.3d at 734, but in the context of
the modern criminal justice system, which is driven largely by
the Sentencing Guidelines, more is required. A criminal
defendant has a right to expect at least that his attorney will
review the charges with him by explaining the elements
necessary for the government to secure a conviction, discuss
the evidence as it bears on those elements, and explain the
sentencing exposure the defendant will face as a consequence
of exercising each of the options available. In a system
dominated by sentencing guidelines, we do not see how
sentence exposure can be fully explained without completely
exploring the ranges of penalties under likely guideline
scoring scenarios, given the information available to the
defendant and his lawyer at the time. See United States v.
Day, 969 F.2d 39, 43 (3d Cir. 1992) (observing that “the
Sentencing Guidelines have become a critical, and in many
cases, dominant facet of federal criminal proceedings” such

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No. 01-5215 Smith v. United States 11
that “familiarity with the structure and basic content of the
Guidelines (including the definition and implications of
career offender status) has become a necessity for counsel
who seek to give effective representation.”). The criminal
defendant has a right to this information, just as he is entitled
to the benefit of his attorney’s superior experience and
training in the criminal law.
The record in this case leaves us in considerable doubt over
the nature and quality of the advice Smith received before he
made his final decision to reject the government’s proposed
plea bargain. Attorney Stephens’ affidavit states that Smith
was aware of a plea offer, and that Smith was predisposed
against a plea to save face in front of his wife, but it does not
state that Stephens actually discussed the terms of the
agreement with Smith. More importantly, the affidavit does
not state that Stephens informed Smith of the dramatically
higher sentence potential (over ten times as much
incarceration) to which Smith was exposed if he were
convicted of even one of many charges. The affidavit does
not claim that Stephens at any time expressed to Smith how
unlikely he was to prevail at trial.
Stephens stated in his affidavit that Smith “knew by virtue
of letters sent from [Stephens] to him possibility [sic] of the
steep sentence which he ultimately got.” Stephens Aff., J.A.
at 71. However, the only such correspondence in the record
came from Stephens after the trial. In his October 17, 1995
letter, Stephens wrote to Smith: “I wanted to formally advise
you of what I believe the relevant sentencing guideline
provisions are and to confirm with you the substance of my
meeting with [the probation officer] and to give you your
various options at this point.” Letter of Oct. 17, 1995 from
Stephens to Smith, J.A. at 105. There is no reference in the
letter to earlier conversations or to pretrial discussions of the
sentencing potential in the case. There is no other evidence
that Smith’s sentencing exposure upon conviction of the
charges in the superseding indictment – information that, in
12 Smith v. United States No. 01-5215
our view, was necessary for a proper consideration of the
guilty plea offer – was ever conveyed to Smith before trial.
The failure of defense counsel to “provide professional
guidance to a defendant regarding his sentence exposure prior
to a plea may constitute deficient assistance.” Moss v. United
States, 323 F.3d 445, 474 (6th Cir. 2003). See also Magana,
263 F.3d at 550 (holding that the defense counsel’s erroneous
advice concerning sentence exposure “fell below an objective
standard of reasonableness under prevailing professional
norms”); Day, 969 F.2d at 43 (holding that incorrect advice
about sentence exposure as a potential career offender
undermined the defendant’s ability to make an intelligent
decision about whether to accept a plea offer). Whether the
petitioner had this information before he rejected the plea
offer is also an important factor in the consideration of the
reasonable likelihood that a properly counseled defendant
would have accepted the government’s guilty plea offer.
Smith should have been given the opportunity at an
evidentiary hearing to develop a record on these factual
issues in the lower court.
III.
The petitioner asks that the matter be remanded to a
different judge to preserve the appearance of fairness.
Although we have the authority to grant that request under 28
U.S.C. § 2106, it is an “extraordinary power and should be
rarely invoked.” Armco, Inc. v. United Steelworkers of
America, AFL-CIO, Local 169, 280 F.3d 669, 683 (6th Cir.
2002) (citation omitted). The factors that we consider are
“(1) whether the original judge would reasonably be expected
to have substantial difficulty in putting out of his mind
previously expressed views or findings; (2) whether
reassignment is advisable to preserve the appearance of
justice; and (3) whether reassignment would entail waste and
duplication out of proportion to any gain in preserving the
appearance of fairness.” Sagan v. United States, 342 F.3d

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No. 01-5215 Smith v. United States 13
493, 501 (6th Cir. 2003) (citations omitted). See also Brown
v. Crowley, 312 F.3d 782, 791-92 (6th Cir. 2002).
None of these factors support the request to remand this
case to a different district court judge. The record contains no
evidence that the district court judge would have difficulty
considering the case on remand in an objective manner. In
fact, he is probably in a superior position to evaluate the
claims, since he presided over Smith’s criminal trial. His
familiarity with the case is no evidence of a lack of propriety
or fairness, since, as we observed earlier, the habeas judge
may rely on his or her memory of the trial when relevant to
the issues on collateral review. See Blanton, 94 F.3d at 235.
To require a different district court judge to become familiar
with the factual and procedural history of this case would
waste judicial resources.
For the foregoing reasons, we VACATE the judgment of
the district court denying the petitioner’s motion to vacate his
sentence under 28 U.S.C. § 2255, and REMAND to the
district court for an evidentiary hearing.

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