Luis Carlos Guerrero v. United States of America

*The Honorable John D. Holschuh, United States District Judge for
the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0306P (6th Cir.)
File Name: 04a0306p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
LUIS CARLOS GUERRERO,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.
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No. 03-5886
Appeal from the United States District Court
for the Middle District of Tennessee at Cookeville.
No. 97-00040—William J. Haynes, Jr., District Judge.
Argued: June 8, 2004
Decided and Filed: September 9, 2004
Before: BOGGS and MOORE, Circuit Judges;
HOLSCHUH, District Judge.*
_________________
COUNSEL
ARGUED: William J. Steed III, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant.
2 Guerrero v. United States No. 03-5886
1Just prior to the second trial, the government filed a motio n to
disqualify defense counsel. This motion was based on the governm ent’s
stated intention to call a co-defendant to testify about a m eeting with
Harold B. McDonough, ASSISTANT UNITED STATES
ATTORNEY, Nashville, Tennessee, for Appellee.
ON BRIEF: Caryll S. Alpert, FEDERAL PUBLIC
DEFENDER’S OFFICE, Nashville, Tennessee, for Appellant.
Harold B. McDonough, William Cohen, ASSISTANT
UNITED STATES ATTORNEYS, Nashville, Tennessee, for
Appellee.
_________________
OPINION
_________________
JOHN D. HOLSCHUH, District Judge. Petitioner Luis
Carlos Guerrero was convicted of nine charges of cocaine
trafficking and sentenced to 175 years in prison. Pursuant to
28 U.S.C. § 2255, he moved to vacate his sentence, claiming
that he was denied the effective assistance of trial counsel
because his attorney failed to communicate a plea offer to
him. Guerrero appeals from the district court’s order denying
his motion to vacate his sentence. For the reasons set forth
below, we AFFIRM the district court’s order.
I.
On February 17, 1988, Luis Carlos Guerrero, a native of
Honduras, was indicted in federal court on nine counts,
including conspiracy to import and distribute cocaine,
possession with intent to distribute more than a kilogram of
cocaine, and distribution of cocaine. At his first trial, held in
June of 1988, Guerrero was represented by John O’Donnell,
an experienced criminal defense attorney, and by attorney
Francis Clarke. After the jury failed to reach a verdict, the
court declared a mistrial. Guerrero was re-tried in July of
1988.1 This time, the jury convicted him of all nine counts.

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No. 03-5886 Guerrero v. United States 3
O’D onne ll and the anticipated need for O’Do nnell and Clarke to take the
stand to rebut that testimony. It was eventually decided that O’D onne ll
would represent Guerrero and Clarke would act as a “case agent” who
would testify if neede d. On direc t appeal, we rejected G uerrero’s claim
of ineffective assistance of counsel based on a potential conflict of
interest. See United States v. Gu errero, No. 88-5986, 1990 WL 166414
(6th C ir. Nov. 1, 19 90)(per curiam ).
2The district judge imposed a sentence of 20 years on ea ch of 8
counts and 15 years on 1 count, all sentences to run co nsecutively.
328 U .S.C. § 225 5 provides, in relevant part:
A prisoner in custody under sentence of a court established by
Act of Congress claiming the right to be released upon the
ground that the sentence was imposed in violation of the
Constitution or laws of the United States . . . may move the court
which imposed the sentenc e to vacate, set aside o r correct the
sentence.
On August 29, 1988, the district court imposed a prison
sentence of 175 years and fines totaling more than $2
million.2
Guerrero served the first nine years of his sentence at a
federal prison in Memphis, Tennessee. While he was there,
he exchanged letters with his wife, Nancy, but she visited him
only once. In March of 1997, he was transferred to a prison
in Miami, Florida so that he could be closer to his family. He
alleges that shortly thereafter Nancy told him that, after the
second trial, O’Donnell told her that the government had
made a plea offer, but O’Donnell had not conveyed the offer
to Guerrero because O’Donnell “didn’t think much of it.”
Based, in part, on this new information, in 1997 Guerrero
filed a motion to vacate his sentence under 28 U.S.C. § 2255.3
The motion alleged that O’Donnell’s performance had been
deficient in a number of ways, in violation of Guerrero’s right
to the effective assistance of counsel under the Sixth and
Fourteenth Amendments to the United States Constitution.
4 Guerrero v. United States No. 03-5886
The motion included a claim, among others, that O’Donnell
had failed to advise him of a plea offer. In support of this
claim, Guerrero submitted his wife’s affidavit concerning her
alleged conversation with O’Donnell. In response, the
government submitted O’Donnell’s affidavit, in which he
stated that he no longer had the case file and did not
remember any plea offer, but that it was his practice to
communicate all plea offers to his clients.
In an order dated March 4, 1999, the district court refused
to consider most of the ineffective assistance of counsel
claims, noting that Guerrero had the opportunity to assert
them on direct appeal but had failed to do so. The only
portion of Guerrero’s ineffective assistance of counsel claim
that the district court addressed was his claim that O’Donnell
had failed to inform him of O’Donnell’s own prior conviction
for possession of cocaine. Citing Strickland v. Washington,
466 U.S. 668 (1984), the court found that while O’Donnell’s
failure to disclose this conviction may have constituted
deficient performance, Guerrero had failed to show that this
prejudiced his defense. The district court therefore denied
Guerrero’s motion to vacate his sentence.
This court subsequently issued a certificate of appealability
with respect to Guerrero’s claim that O’Donnell had failed to
tell him of an alleged plea offer, noting that this alleged
ineffective assistance of counsel claim was based on a
different ground for relief than that which had been
previously considered on direct appeal. Based on the
conflicting affidavits submitted by O’Donnell and Mrs.
Guerrero, we vacated the district court’s decision with respect
to this one claim and remanded the case for further
proceedings on that claim. See United States v. Guerrero,
No. 99-5735, 2001 WL 1298843 (6th Cir. Aug. 7, 2001).
On remand, Judge Aleta Trauger of the United States
District Court for the Middle District of Tennessee conducted
an evidentiary hearing to determine whether a plea offer had
been extended to Guerrero. At that hearing, held on June 17,

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No. 03-5886 Guerrero v. United States 5
2002, Mrs. Guerrero testified that immediately after the
second trial she asked O’Donnell why her husband had not
been offered a plea agreement like the ones that had been
offered to the co-defendants. She stated that O’Donnell
replied that the government had made an offer, but he did not
tell Guerrero about it because it was not a good offer, and he
knew that Guerrero would not accept it. Mrs. Guerrero
testified that she did not ask what the offer was, and
O’Donnell did not volunteer that information. She also
testified that, although she was upset that O’Donnell had not
told her husband about the alleged plea offer, she did not tell
her husband about this conversation until mid-May of 1998,
nearly ten years after he was convicted. She explained that
because her husband had been in Memphis and she had been
able to visit him only once, she had not had the occasion to
discuss it with him prior to that date. Mrs. Guerrero also
testified that, after she told her husband about the plea offer,
he sent the affidavit to her. Although she remembers signing
it and sending it back to him, she does not remember having
her signature notarized.
At the same hearing, Guerrero testified that his attorneys
never discussed a possible plea bargain with him. He was led
to believe that any discussions concerning the possibility of
cooperating with the government in exchange for a more
lenient sentence had to be initiated by the government.
Guerrero also stated that if a plea had been offered, he would
have considered taking it. During the first trial, his attorneys
told him that he could be sentenced to up to 180 years in
prison, yet they encouraged him to go to trial because they
believed that he would win. After the first trial ended in a
mistrial, they told him not to worry because, even if he lost
the second trial, they had grounds to appeal.
6 Guerrero v. United States No. 03-5886
4Francis Clarke, co-defense counsel at the first trial, died several
years before the evid entiary he aring.
The government then called O’Donnell as a witness.4
When asked if the government, at any time, offered a plea
bargain to Guerrero, O’Donnell replied, “I don’t remember
one way or the other.” J.A. at 102. However, he stated that
if an offer had been made, he “would have conveyed it in
some manner to Mr. Guerrero,” because it was his practice to
convey all offers, good or bad, to his clients. J.A. at 103-104.
He admitted that it was not uncommon for defendants in drug
cases to negotiate plea bargains, and that it would have been
his usual practice to approach the government about the
possibility. He also noted, however, that sometimes the
government was simply not interested in negotiating, and this
could have been one of those cases.
O’Donnell testified that he does not remember discussing
the possibility of a plea agreement with Guerrero. Neither did
he remember having a conversation with Mrs. Guerrero about
a plea offer. He testified that her claim – that he told her that
he did not communicate a plea offer to Guerrero – would have
been inconsistent with his general practice. On cross-
examination, O’Donnell admitted that it was possible that a
plea offer had been extended to Guerrero; he simply did not
remember. Likewise, he could not say for certain that he did
not discuss a plea offer with Mrs. Guerrero; again, he simply
did not remember. O’Donnell no longer had Guerrero’s case
file, and attempts to locate it had been unsuccessful.
Harold McDonough, the Assistant United States Attorney
who prosecuted the case at both trials, also testified at the
hearing. McDonough testified that he had no recollection of
any settlement discussions or plea offer, and there was no
documentation in his files to support a finding that such an
offer had been made. He stated that if a plea offer had been
made, he would have remembered; he also believed that he
would have made some notation in the file. McDonough

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No. 03-5886 Guerrero v. United States 7
5See Alford v. North Carolina, 400 U.S. 25 (19 70).
testified that the government would not have agreed to an
Alford plea, in which Guerrero would have been permitted to
plead guilty while maintaining his innocence.5 McDonough
also testified that it was unlikely that the government would
have offered a plea bargain, since it was believed that
Guerrero was a ringleader in the narcotics trafficking
conspiracy and had testified untruthfully at the first trial.
The final witness was Allen Brown, the Drug Enforcement
Administration (“DEA”) investigator assigned to the case. He
testified that he was present for both of Guerrero’s trials.
Brown testified that if there had been plea negotiations, he
would have been consulted. According to Brown, there was
no discussion of a plea in this case, and defense counsel never
raised the subject. He stated, “[t]here were no plea
negotiations; I know that to be a fact.” J.A. at 149.
At the end of the hearing, Judge Trauger recused herself
from the case. She stated that she had not realized that
McDonough would be testifying at the hearing. Since she
had once been his supervisor at the United States Attorney’s
office, she believed that it would be improper for her to weigh
his credibility against that of the other witnesses. The case
was then assigned to Judge William Haynes. The parties
agreed that there was no need for another evidentiary hearing,
and that Judge Haynes could issue a decision based solely on
the hearing transcript.
In an Order and Memorandum dated June 24, 2003, Judge
Haynes denied Guerrero’s motion to vacate his sentence. In
the Memorandum, the court initially observed that because a
defendant has the sole authority to decide whether to plead
guilty, a defense attorney has a legal duty to disclose all plea
offers made. The court noted, however, that the only
evidence of a plea offer in this case came from Mrs. Guerrero,
who apparently waited ten years to disclose this information
8 Guerrero v. United States No. 03-5886
to her husband. Furthermore, although Mrs. Guerrero’s
affidavit appeared to have been notarized, she testified that
she did not remember having it notarized. Judge Haynes
considered Mrs. Guerrero’s testimony and also the testimony
of John O’Donnell, Harold McDonough, and Allen Brown.
The court stated:
John O’Donnell does not recall the statement, but given
the defense trial strategy and Guerrero’s insistence on his
innocence, that [sic] Court concludes that it seems
unlikely that the subject would have come up.
McDonough, the prosecutor in this case, does not recall
any such plea offer and the lead agent states that the
Government never approached Guerrero . . . about a plea.
J.A. at 31. The court also noted that it was unlikely that a
plea offer would have been extended since: (1) Guerrero was
at the top of the cocaine distribution ring, and the government
had already entered into plea agreements with several co-
defendants; (2) Guerrero insisted that he was innocent; and
(3) the government believed that Guerrero had testified
untruthfully at the first trial. Judge Haynes found that
Guerrero had failed to establish, by a preponderance of the
evidence, that the government had extended a plea offer. He
therefore denied Guerrero’s motion to vacate his sentence.
II.
Guerrero now appeals from Judge Haynes’s order denying
his motion to vacate his sentence. This court has jurisdiction
to review the district court’s order pursuant to 28 U.S.C.
§ 2253(a). While we review de novo a district court’s denial
of a § 2255 motion, the factual findings made by the district
court in determining whether a petitioner has established
ineffective assistance of counsel are reviewed for clear error.
See Moss v. United States, 323 F.3d 445, 454 (6th Cir. 2003);
Thompson v. United States, No. 02-5564, 2004 WL 193162
at **3 (6th Cir. Jan. 30, 2004)(citing McQueen v. Scroggy, 99
F.3d 1302, 1310 (6th Cir. 1996)). See also Kinnard v. United

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No. 03-5886 Guerrero v. United States 9
States, 313 F.3d 933, 935 (6th Cir. 2002)(“On federal habeas
corpus review, the appeals court reviews the district court’s
legal conclusions de novo and its factual findings for clear
error.”).
Although not raised as an issue in his briefs, counsel for
Guerrero stated during oral argument that in this case the
district court’s factual findings should be given less deference
than clear error because Judge Haynes did not conduct the
evidentiary hearing and did not have the opportunity to judge
the demeanor of the witnesses. Counsel contended that, under
these circumstances, the district court’s factual findings
should be subject to de novo review.
The same argument was made and rejected, however, in
United States v. Jabara, 644 F.2d 574 (6th Cir. 1981), which
involved an appeal by the government from a finding of fact
made by the district court on a record that did not involve any
hearing or oral testimony. The government argued that
because there was no oral testimony below, the court of
appeals had “the same ‘cold’ record upon which the trial court
based its decision,” id. at 577, and therefore the court of
appeals should review the record de novo to determine
whether the district court’s factual finding was supported by
the record. This Court pointed out that Rule 52(a) of the
Federal Rules of Civil Procedure provides that an appellate
court must not set aside findings of fact of the district court
unless those findings are clearly erroneous, and that “[t]his
standard applies notwithstanding the fact that the appellate
record may consist entirely of documentary evidence.” Id.
(citations omitted). The Court further noted that while the
corresponding rule in criminal cases, Rule 23(c), does not
specify a standard of appellate review, the clearly erroneous
test has also been applied with reference to findings of fact in
criminal proceedings. The Court set forth the basis for the
clearly erroneous test as follows:
The “clearly erroneous” test does not derive solely from
the trial judge’s superior opportunity to assess the
10 Guerrero v. United States No. 03-5886
credibility of witnesses; it also reflects and preserves the
proper relationship between trial courts and courts of
appeal.
Id. (citations omitted).
The decisions of this Court, however, were not in complete
agreement on this issue in 1981. The same year Jabara was
decided, this Court, in Lydle v. United States, 635 F.2d 763
(6th Cir. 1981) said:
The major rationale for deferring to district court
findings which are not clearly erroneous is that the
district court is able, as we are not, to observe the
demeanor of witnesses. Where the trier of fact has
observed no witnesses, the “clearly erroneous” test is
inapplicable.
Id. at 766 n.1. (citations omitted). See also K&M Joint
Venture v. Smith Int’l, Inc., 669 F.2d 1106, 1119 n.8 (6th Cir.
1982)(Holschuh, J., concurring in part and dissenting in
part)(citing Sixth Circuit cases that have followed the
approach set forth in Jabara).
The division of authority in this Circuit was mirrored on a
national level by a conflict of authority among the circuits.
To resolve this conflict, Rule 52(a) was amended in 1985 to
provide that:
Findings of fact, whether based on oral or documentary
evidence, shall not be set aside unless clearly erroneous,
and due regard shall be given to the opportunity of the
trial court to judge the credibility of the witnesses.
The Advisory Committee, in explaining the rationale for the
amendment, said:
To permit courts of appeal to share more actively in the
fact-finding function would tend to undermine the
legitimacy of the district courts in the eyes of litigants,

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No. 03-5886 Guerrero v. United States 11
multiply appeals by encouraging appellate retrial of some
factual issues, and needlessly reallocate judicial
authority.
Fed. R. Civ. P. 52(a) Advisory Committee’s notes.
It is interesting to note that the appellant in the present case,
Luis Carlos Guerrero, while serving the sentence in question,
filed a lawsuit against Francis White in the Middle District of
Tennessee, and raised the same issue as he does in the present
case. In Guerrero v. White, No. 98-6342, 1999 WL 1282481
(6th Cir. Dec. 28, 1999), he appealed an adverse judgment on
findings of fact and conclusions of law. With reference to the
standard of review, this Court said:
Guerrero urges us to review the district court’s findings
and the denial of his post-trial motion de novo because
the decision was based principally upon his deposition
and other documentary evidence. While some federal
courts took this approach prior to 1985, the amendments
to Fed.R.Civ.P. 52(a) settled the question and provide
that “[f]indings of fact, whether based on oral or
documentary evidence, shall not be set aside unless
clearly erroneous, and due regard shall be given to the
opportunity of the trial court to judge the credibility of
the witnesses.” Further, we are bound to accept the
factual inferences drawn by the trial court from
undisputed facts unless they are clearly erroneous. See
Commissioner v. Duberstein, 363 U.S. 278, 291 (1960).
Guerrero, 1999 WL 1282481 at **2.
In the present case, the parties agreed that a decision could
be made by Judge Haynes based solely on the transcript of the
hearing held by Judge Trauger. For the purpose of deciding
which standard of review applies to Judge Haynes’s findings
of fact, we find no distinction between a transcript of
testimony in a hearing and a “deposition and other
documentary evidence.” Id. Furthermore, there is no reason
12 Guerrero v. United States No. 03-5886
6Rule 12 of the Rules Governing Section 2255 Proceedings for the
United States D istrict Courts specifically provides that a district court
“may apply the Federal Rules of Criminal Procedure or the Federal Rules
of Civil Procedure, whichever it deems most appropriate, to motions filed
under these rules.”
why Rule 52(a) should not be applied in § 2255 cases.6 The
fundamental rationale for Rule 52(a) – as set forth in Jabara
and the Advisory Committee’s note – applies with equal force
to appeals from the district court’s findings of fact in § 2255
cases as it does in appeals from the district court’s findings of
fact in other civil cases.
Having determined that the “clearly erroneous” standard of
review applies to the district court’s finding of fact that the
government did not make a plea offer to Guerrero’s counsel,
the final step is to apply that standard to the evidence in this
case. “A finding is ‘clearly erroneous’ when, although there
is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a
mistake has been committed.” United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948). The burden is on the
appellant to prove that a finding is clearly erroneous; this
requires more than a showing of conflicting testimony. See
Harrison v. Monumental Life Ins. Co., 333 F.3d 717, 722 (6th
Cir. 2003).
III.
Strickland v. Washington, 466 U.S. 668 (1984), sets forth
the relevant standard for determining whether a criminal
defendant has received ineffective assistance of counsel. In
order to obtain habeas relief based on ineffective assistance of
counsel, a petitioner must show that: (1) counsel’s
performance was deficient; and (2) counsel’s deficient
performance prejudiced the defense. Id. at 687.
To satisfy the first prong of Strickland, a petitioner must
show that his attorney’s performance fell below what would

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No. 03-5886 Guerrero v. United States 13
7Even if we reviewed this factual finding de novo, as urged by
Guerrero , we wo uld rea ch the same conclusion.
be considered objectively reasonable. Id. at 687-88. The
Sixth Circuit has previously held that a defense attorney’s
failure to communicate a plea offer to his or her client
constitutes deficient performance as a matter of law. See
Griffin v. United States, 330 F.3d 733, 737 (6th Cir. 2003).
Therefore, if Guerrero could show that the government
extended a plea offer that O’Donnell failed to communicate
to him, he would have established the first prong of the
Strickland test. With respect to the second prong of
Strickland, a petitioner may establish the requisite prejudice
by demonstrating a “reasonable probability” that if he had
been notified of the plea offer, he would have accepted it. Id.
See also Magana v. Hofbauer, 263 F.3d 542, 547-48 (6th Cir.
2001); Turner v. Tennessee, 858 F.2d 1201, 1206 (6th Cir.
1988), vacated on other grounds, 492 U.S. 902 (1989),
reinstated on other grounds, 940 F.2d 1000, 1002 (6th Cir.
1991).
On appeal, Guerrero argues that he was denied effective
assistance of counsel due to O’Donnell’s failure to inform
him of the alleged plea offer. He further claims that if
O’Donnell had conveyed the alleged offer to him, there is a
reasonable probability that he would have accepted it. The
threshold issue in this case, of course, is whether the
government ever extended a plea offer to Guerrero through
O’Donnell. This is a purely factual issue. The district court
made the factual finding that no such offer had been made.
On consideration of the entire record, including the ten-year
delay in the assertion of this claim and the transcript of the
testimony of all witnesses who testified at the evidentiary
hearing, we are not left “with the definite and firm conviction
that a mistake has been committed.” We find, therefore, that
the district court’s finding of fact regarding the alleged plea
offer was not clearly erroneous.7
14 Guerrero v. United States No. 03-5886
There is admittedly some evidence to support a finding that
the government did extend a plea offer to Guerrero, and that
O’Donnell failed to communicate it to him. At the
evidentiary hearing, Guerrero testified that O’Donnell never
discussed the possibility of a plea agreement with him. Mrs.
Guerrero testified that after her husband was convicted,
O’Donnell told her that the government had made a plea offer
but that he decided not to tell Guerrero about it because he
“didn’t think much of it.” J.A. at 39. O’Donnell conceded
that Mrs. Guerrero might be correct; he simply did not
remember one way or another whether a plea offer had been
made. He conceded that it was his practice to engage in plea
negotiations with the government. He also acknowledged
that he had withheld other information from Guerrero,
including disclosure of his own arrest for possession of
cocaine. Guerrero contends that O’Donnell’s failure to
disclose this information makes it more likely that he also
failed to convey the alleged plea offer.
There is, however, a great deal of evidence to support a
finding that no plea offer was ever made. Allen Brown, the
DEA Agent who participated in both trials, testified that if a
plea offer had been made, he would have known about it. He
stated, “[t]here were no plea negotiations; I know that to be a
fact.” J.A. at 149. Likewise, Assistant United States
Attorney Harold McDonough testified that he would have
remembered if a plea offer had been extended and probably
would have made some notation in the file. He did not
remember any settlement discussions, and there was no
documentation in the file indicating that a plea offer had been
made. McDonough also testified that, because the
government believed that Guerrero was one of the kingpins in
the cocaine distribution ring and had testified untruthfully at
the first trial, it was unlikely that the government would have
extended a plea offer to him.
O’Donnell testified that it was his practice to attempt to
negotiate a plea bargain. However, he explained that there are
“some cases where it was clear that the prosecution didn’t

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No. 03-5886 Guerrero v. United States 15
want to make a deal. I don’t remember if this was one of
them.” J.A. at 115. He does not remember discussing a plea
agreement with either Mr. or Mrs. Guerrero. He did testify,
however, that it was his practice to convey all plea offers to
his clients because “[i]t’s his choice, not mine.” J.A. at 104.
Therefore, if the government had made an offer, O’Donnell
would have conveyed it to Guerrero, according to his
testimony, even if he did not believe it was a good one.
The district court noted that the only evidence of a plea
offer came from Mrs. Guerrero. The court chose to discredit
her testimony for several reasons. Mrs. Guerrero testified that
she did not know the specific terms of the alleged plea offer;
O’Donnell did not tell her, and she did not ask. She testified
that even though she was upset when she learned that
O’Donnell had failed to tell her husband of the alleged plea
offer, she did not tell her husband about this conversation
until ten years later. Furthermore, when questioned about the
affidavit, she stated that she remembered signing it and
sending it back to her husband, but she did not remember
having it notarized.
Guerrero contends that the district court should not have
discredited his wife’s testimony just because she waited ten
years to tell him about the plea offer. As a lay person, she
would not have understood the legal significance of
O’Donnell’s alleged failure to communicate the plea offer.
Furthermore, until her husband was transferred to Miami, she
did not have the opportunity to communicate with him on a
regular basis. She did, however, visit him once and
exchanged letters with him. There was certainly sufficient
communication between Mrs. Guerrero and her husband
during a ten-year period that she could have told Guerrero
about a plea offer if, in fact, one had been made even if, as
claimed, she did not know the legal significance of
O’Donnell’s failure to convey it to Guerrero.
The district court chose to give more weight to the
testimony of Harold McDonough and Allen Brown, who
16 Guerrero v. United States No. 03-5886
testified that they did not remember extending a plea offer to
Guerrero, and to the testimony of John O’Donnell, who
testified that he had no recollection of plea negotiations in this
case. The court found that this testimony was consistent with
the government’s theory. It noted:
First, the evidence is that Guerrero was at the top of the
distribution ring that the government was prosecuting
and had pleas from one or more participants in this
distribution ring. Second, Guerrero insisted upon his
innocence, and such an offer would be inconsistent with
any discussion of a plea by his counsel with the
Government. Third, there had been a mistrial at which
Guerrero testified and in the Government’s view that
testimony was untruthful. A plea offer from the
Government based upon untruthful testimony by
Guerrero seems unlikely under these circumstances.
J.A. at 30.
Although the issue was not raised by either of the parties,
we find that the district court erred in considering Guerrero’s
insistence upon his innocence as a factor in determining
whether a plea offer was extended to him. We touched on
this issue in Griffin v. United States, 330 F.3d 733 (6th Cir.
2003). In Griffin, it was undisputed that defendant’s counsel
had failed to convey a plea offer to him; the first prong of
Strickland was therefore satisfied. The only question was
whether Griffin’s continued insistence upon his innocence
foreclosed a finding that, if the offer had been conveyed to
him, he would have accepted it. See 330 F.3d at 738. We
held that his repeated declarations of innocence were not
dispositive on this issue and noted:
Defendants must claim innocence right up to the point of
accepting a guilty plea, or they would lose their ability to
make any deal with the government. It does not make
sense to say that a defendant must admit guilt prior to
accepting a deal on a guilty plea. It therefore does not

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No. 03-5886 Guerrero v. United States 17
make sense to say that a defendant's protestations of
innocence belie his later claim that he would have
accepted a guilty plea. Furthermore, a defendant must be
entitled to maintain his innocence throughout trial under
the Fifth Amendment.
Id. While Griffin dealt with the prejudice prong of Strickland,
the same reasoning applies with equal force here. To
paraphrase Griffin, Guerrero was entitled to maintain his
innocence at all times. If he did not maintain his innocence,
he would have lost any ability to make a deal with the
government.
Even though the district court erred in considering
Guerrero’s repeated claims of innocence as a factor in
determining whether the government extended a plea offer to
him, this was harmless error. As discussed above, there was
more than enough additional evidence to support the district
court’s finding that no plea offer was extended in this case.
After reviewing the entire record, we are not left with a
definite and firm conviction that the district court made a
mistake in finding that the government did not extend a plea
offer to Guerrero. It follows that O’Donnell cannot be
charged with failing to communicate a non-existent offer to
his client. Because Guerrero has failed to show that
O’Donnell’s performance was deficient, he has failed to
satisfy the first prong of Strickland.
IV.
We conclude that the district court’s factual finding that the
government did not extend a plea offer to Guerrero is not
clearly erroneous. We therefore AFFIRM the district court’s
order denying Guerrero’s motion to vacate his sentence based
on ineffective assistance of counsel.

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