Silas McAdoo v. FRANK ELO, Warden

*The Honorable Dan Aaron Polster, United States District Judge for
the Northern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0339P (6th Cir.)
File Name: 03a0339p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
SILAS MCADOO,
Petitioner-Appellant,
v.
FRANK ELO, Warden
Respondent-Appellee.
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No. 01-2050
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 98-74705—Paul D. Borman, District Judge.
Argued: February 5, 2003
Decided and Filed: September 23, 2003
Before: GILMAN and GIBBONS, Circuit Judges;
POLSTER, District Judge.*
_________________
COUNSEL
ARGUED: James R. Gerometta, FEDERAL PUBLIC
DEFENDERS OFFICE, Detroit, Michigan, for Appellant.
2 McAdoo v. Elo No. 01-2050
Debra M. Gagliardi, OFFICE OF THE ATTORNEY
GENERAL, CORRECTIONS DIVISION, Lansing,
Michigan, Appellee. ON BRIEF: James R. Gerometta,
FEDERAL PUBLIC DEFENDERS OFFICE, Detroit,
Michigan, for Appellant. Debra M. Gagliardi, OFFICE OF
THE ATTORNEY GENERAL, CORRECTIONS DIVISION,
Lansing, Michigan, Appellee.
_________________
OPINION
_________________
JULIA SMITH GIBBONS, Circuit Judge. Silas McAdoo
appeals the district court’s denial of his petition for a writ of
habeas corpus. McAdoo pled guilty in Michigan state court
to one count of second-degree murder and two counts of
assault with intent to commit murder. Pursuant to a plea
agreement, he was sentenced to three life sentences to run
concurrently. McAdoo later claimed that his attorney
misinformed him about the consequences of a life sentence.
McAdoo raises three issues in this appeal, arguing that (1) his
guilty plea was not knowing and voluntary because he
misunderstood its consequences, (2) his plea was illusory
based on the effective unavailability of parole for those
serving a statutory life sentence, and (3) his trial counsel was
ineffective for allegedly misinforming McAdoo about his
possible sentence. For the following reasons, we affirm the
district court’s denial of habeas relief.
I.
McAdoo was charged in Michigan state court with one
count of first-degree murder and two counts of assault with
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

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No. 01-2050 McAdoo v. Elo 3
about the facts of McAdoo’s offenses, all of which occurred
in the family home.
On January 9, 1995, the trial date, McAdoo entered a
guilty plea to the lesser offense of second-degree murder and
two counts of assault with intent to commit murder. The
agreement was in exchange for the dismissal of the first-
degree murder charge that carried a maximum sentence of life
without parole. At the plea proceeding, McAdoo’s attorney
told the court that the plea agreement indicated three life
sentences. McAdoo signed the plea form, which stated that
the agreement was for three life sentences. McAdoo stated to
the court under oath that no one had promised him anything
other than what the plea form indicated.
Sentencing was held on February 1, 1995. At the outset,
McAdoo’s attorney stated that McAdoo did not want to
withdraw his plea, and McAdoo agreed on the record. The
court stated that it was ready to “impose a sentence in accord
with the sentence agreement.” It then sentenced McAdoo to
parolable life for the murder conviction and two concurrent
terms of twenty years imprisonment for the assault
convictions. The sentencing judge stated “Count one and
murder two for a term of statutory life which is 20 years.”
Although the judge indicated an intent to sentence McAdoo
in accord with the plea agreement, she failed to do so. First,
a statutory life term does not equal twenty years in Michigan.
Second, the plea agreement did not call for twenty-year
sentences for the assault convictions.
The prosecution then moved to amend the sentence to
conform to the plea agreement, which had provided for three
concurrent life sentences rather than one life sentence and two
twenty-year sentences. Resentencing occurred on March 24,
1995. McAdoo, then represented by his second counsel,
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
at the time he entered his plea. Defense counsel argued that
4 McAdoo v. Elo No. 01-2050
there was confusion when McAdoo entered his plea about
what the sentence would be. The prosecutor responded that
there was some confusion at sentencing, “but not at plea
time.”
At the resentencing hearing, McAdoo, who was not under
oath, had the following exchange with the state trial court:
THE COURT: Mr. McAdoo, sir, do you wish to say
anything before this Court imposes the correct sentence,
which was pursuant to the plea agreement?
DEFENDANT McADOO: Yes, Judge Braxton. The
day that you accepted my plea, I don’t know if you
remember. I know you have a lot of cases that you have
to do, but when Batchelor first came before you with me,
and you asked me more than once did I understand, and
you asked me how did I plead, and I pled not guilty.
Then he took me, and we went into the back chambers
or in another room, and he made the statement to me, and
maybe I am wrong, but I was told that the three life
sentences would be 20, 20, 20 to run concurrently, and
that my kids would not have to be subjected to the Court.
THE COURT: But he did inform you that they were
three life sentences. Is that correct?
DEFENDANT McADOO: Yes, Ma’am.
THE COURT: Which is indicated on this form.
MR. DEFENDANT: But he, I guess what I am trying to
say is, Judge Braxton, that if I had understood what he
was telling me which, as I stated to you before, I had no
knowledge of what was going on whatsoever. I have no
–
THE COURT: Now you had some knowledge because
I spoke to you. But you go ahead.

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No. 01-2050 McAdoo v. Elo 5
1On May 4, 199 5, the court conducted a hearing on that issue. Dr.
Ke ith Dlugokinski, a psychologist from the prison where McAdoo was
incarcerated, testified that McA doo was suffering from major depression
and was being medicated at the time he entered his plea. However,
Dlugokinski also testified that McAdoo’s medications would not have
significantly impaired his cognitive abilities. Although no order denying
the motio n to withd raw the plea appe ars in the record, it is evident that the
court denied the mo tion. T he issue of M cAd oo’s p sychological state and
med ications has no t been raised in this app eal.
DEFENDANT McADOO: What I am trying to say is
my lawyer, Batchelor, he never spoke with me about
anything. It was just the first time I ever saw this piece
of paper here was the day that you took my plea
agreement. When I first saw you, and it was more or less
stated to me accept it or get another attorney. I wrote all
this up, and I turned it in to the Grievance Commission.
But anyway to sum it all up, he told me something that
was different than what you did, and that’s the only thing
I am arguing, and is the fact that I didn’t understand what
he was doing. If I would have understood that he was
sentencing me to three life sentences to the point, why
not fight the case?
I didn’t want my kids to be subjected to it. It was
enough that they went through. And then for him to tell
me that it would be the three life sentences, I know I
need to be punished for what I did. No problem
whatsoever with that. But that’s not what he explained
to me. That’s all I am trying to say to the Court.
The court then conformed the sentence to the written plea
agreement and stated that it would consider McAdoo’s
motion to withdraw the plea if he presented evidence that his
mental state and medication prevented him from knowingly
entering a guilty plea.1
6 McAdoo v. Elo No. 01-2050
2The “Lifer La w,” M.C.L. § 791.233b; M.S.A. § 28.303(3) provides
that prisoners convicted of an enumerated offense (such as second-degree
murder) are not eligible for parole until the prisoner has served the
minimum term less available d isciplinary cred its. People v. Lino, 539
N.W.2d 545 , 549 (Mich. Ct. A pp. 1 995 ), overruled on other grounds by
Peo ple v. Carson, 560 N.W.2d 657, 665 (M ich. Ct. App. 1996). In
McA doo’s case, the “Lifer Law” would have m eant that he was likely to
be eligible for parole after serving approximately fifteen years. Lino, 539
N.W.2d at 548-49 (defendant serving parolable life sentence for crime
committed on or after O ctober 1, 1992 , is subject to the jurisdiction of the
parole board and eligible for parole after fifteen years imprisonment).
McAdoo was then appointed a third counsel, Edward
Jabbour, who filed another motion to withdraw McAdoo’s
guilty plea, arguing that the plea was not knowing and
voluntary. The sentencing court held a hearing on this motion
on March 7, 1996. Jabbour argued that McAdoo entered his
plea believing that he would be released after twenty years
imprisonment and that this alleged misunderstanding nullified
the plea.
The court conducted an evidentiary hearing on May 9,
1996, to determine whether McAdoo’s alleged
misunderstanding nullified his plea. At the May 9, 1996,
hearing, Batchelor testified that his understanding was that
the penalty for first-degree murder in Michigan was a
sentence of “natural life” and the penalty for second-degree
murder was a sentence of “parolable” life. He testified that he
was familiar with the “Lifer Law,”2 which would have
governed McAdoo’s possibility of parole. When asked what
his understanding of the “Lifer Law” was, Batchelor stated,
“in terms of what I remember in discussion with Mr. McAdoo
with regards to the Lifer Law, we never discussed it.” When
asked whether he had said anything to McAdoo about what a
sentence of life imprisonment means, Batchelor responded, “I
don’t recall saying anything to him about life imprisonment.”
McAdoo presented the testimony of Michael Patrick
Martin, prisoner advocate for the Wayne County jail at the
time of McAdoo’s incarceration there, and Mark Carrico of

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No. 01-2050 McAdoo v. Elo 7
3McAdoo later stated in an affidavit filed in the district court that
Batchelor had told him that a “life sentence” in M ichigan was the
equivalent of a twenty-year sentence and that he would be paroled in
app roxim ately seventeen-and -a-half years. Because 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 objectively unreasonable.
the Team for Justice, who visited McAdoo after his
incarceration. Jabbour asked Martin if McAdoo told him
about the sentence agreement contained in the plea
agreement. The prosecution objected to this evidence as
hearsay. Jabbour argued that the evidence was “state of
mind” testimony, but the court sustained the objection.
Jabbour attempted to elicit the same information from Carrico
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
“get out in 17 years.” Jabbour then asked the court to rule
that if McAdoo testified, he could not be questioned about the
underlying facts of the offense. The court ruled that McAdoo
could be questioned about any facts that were relevant to the
motion to withdraw the plea. McAdoo did not testify.3
At the close of the hearing, the court denied McAdoo’s
motion to withdraw his guilty plea, concluding:
If I look at the testimony and my view of the witnesses
that testified this afternoon, he stated – Mr. Carrico stated
he met the defendant back in 1994, and that the
defendant’s mother called him because he’s a member of
the Team for Justice. He further testified that he visited
weekly with the defendant before he was sent to Jackson
[prison], and Mr. Carrico also testified he was at the
sentencing. Mr. Carrico further testified that defendant
told him he would be eligible for parole in 17 years.
That’[s] what your witness means to the understanding
the defendant had at that time.
8 McAdoo v. Elo No. 01-2050
Upon questioning Mr. Batchelor, he indicated there was,
in fact, a plea bargain that was made on the day of trial.
He testified further that he, being Mr. Batchelor, was of
the opinion that the plea offered the defendant would
give him a better opportunity to put his client in the best
possibl[e] posture that he could be in, and he made it
know[n] to his client what his options were at the time
. . .
This Court, after listening to the witnesses and the
testimony that was presented in terms of the defendant's
state of mind, the defendant stated it was his
understanding he would be parolable in 17 years which,
in fact, is the truth. And this Court, when taking a plea
from any defendant as best as I can recall, I’m very
meticulous in terms of whether or not the defendant has
an understanding of what it is he's doing. Of course, I
cannot and I do not go behind the scene to ask questions
as to w[he]ther or not--what the defendant's particular
understanding is of what a certain word means to a
particular defendant. That I do not do. So, based upon the
testimony I've heard, I deny the defendant’s motion.
Following denial of his second motion to withdraw his
guilty plea, McAdoo filed a delayed application for leave to
appeal to the Michigan Court of Appeals. This application
was denied for lack of merit in the grounds presented.
McAdoo then filed a delayed application for leave to appeal
to the Michigan Supreme Court, which was denied.
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.
McAdoo was granted a certificate of appealability with
respect to his claims that his plea was involuntary, that his

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No. 01-2050 McAdoo v. Elo 9
4A certificate of appealability was denied on McAdo o’s claim that his
attorney was ineffective for failing to pursue a diminished capa city
defense.
plea was illusory, and that his defense counsel was ineffective
in advising him about the consequences of his plea.4
II.
The Antiterrorism and Effective Death Penalty Act
(“AEDPA”) governs this case. Under 28 U.S.C. § 2254(d),
a federal court may not grant habeas relief unless the
adjudication in the state court proceedings:
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.
Under AEDPA, “[a] federal habeas court may not issue the
writ simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.” Williams
v. Taylor, 529 U.S. 362, 411 (2000). Rather, the issue is
whether the state court’s application of clearly established
federal law was “objectively unreasonable.” Id. at 409.
A federal court is to apply a presumption of correctness to
state court findings of fact for habeas corpus purposes unless
clear and convincing evidence is offered to rebut this
presumption. 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161
F.3d 358, 360-61 (6th Cir. 1998). The appeals court gives
complete deference to the federal district court’s and state
court’s findings of fact supported by the evidence. Clemmons
v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994). Trial court
10 McAdoo v. Elo No. 01-2050
errors in state procedure and/or evidentiary law do not rise to
the level of federal constitutional claims warranting relief in
a habeas action unless the error renders the proceeding so
fundamentally unfair as to deprive the petitioner of due
process under the Fourteenth Amendment. Estelle v.
McGuire, 502 U.S. 62, 69-70 (1991).
III.
A.
We apply the standards of AEDPA to McAdoo’s three
claims. His first contention is that his guilty plea was not
knowing and voluntary because he was misinformed by his
attorney about the consequences of his plea. Although
McAdoo acknowledges that he was aware that he was
receiving a life sentence, he argues that he misunderstood the
implications of a life sentence because of erroneous
statements made to him by his lawyer and that the state court
finding otherwise was objectively unreasonable.
The Supreme Court has held that a defendant must have
“sufficient awareness of the relevant circumstances and likely
consequences” of his plea. Brady v. United States, 397 U.S.
742, 748 (1970). A guilty plea must be accompanied by “an
affirmative showing that it was intelligent and voluntary.”
Boykin v. Alabama, 395 U.S. 238, 242 (1969). Such a
showing is generally made by the government’s production of
a transcript of state court proceedings to establish that the plea
was made voluntarily. Garcia v. Johnson, 991 F.2d 324, 326
(6th Cir. 1993).
Prior to entering his plea, McAdoo signed the Pretrial
Settlement and Notice of Acceptance, which indicated that the
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
that he knowingly and voluntarily entered into the agreement.
McAdoo also testified that no additional promises, other than

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No. 01-2050 McAdoo v. Elo 11
5McAdoo also attempts to show confusion about the consequences
of a parolable life sentence by submitting evidence that the State Bar of
Michigan addressed the issue of the consequences of a life sentence at an
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
state evidentiary hearing. Evidence about this meeting obviously was not
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 meant anything other than what its name implies.
those contained in the plea agreement, had been made to him.
Shortly before McAdoo entered his plea, his attorney stated
to the court that the plea agreement called for three life
sentences and that he had discussed the agreement with
McAdoo. The attorney also stated that he had explained
McAdoo’s constitutional rights to him and McAdoo had
indicated his understanding.
McAdoo does not contend that the plea colloquy was
inadequate. He acknowledges that he knew he was agreeing
to a life sentence. His argument is rather that there was
confusion about the consequences of a parolable life sentence
in Michigan at the time and that he relied on the alleged out-
of-court statements of his attorney. In further support of the
existence of confusion, he cites the statement of the judge at
sentencing that he would receive “a term of statutory life
which is 20 years” and the attorneys’ silence after that
statement. 5
McAdoo contends that his case is analogous to Hart v.
Marion Correctional Institution, 927 F.2d 256 (6th Cir.
1991). In Hart, the state trial judge and Hart’s attorneys
incorrectly informed him that his maximum period of
incarceration would be fifteen years if he pled guilty. The
maximum was actually seventy-five years. This court stated:
This record shows that the court informed Hart he could
be sentenced from 60 to 150 years. The court
12 McAdoo v. Elo No. 01-2050
immediately qualified that information by adding that the
maximum period he could serve for the sentence would
be 15 years. Nowhere does the record show that Hart was
informed before entering his plea of the true sentence, a
minimum of 30 years and a maximum of 75. He was
informed by the court of this range at his sentencing
hearing, but again at the hearing, the court stated that
under Ohio law he would only serve 15 years of the
sentence. . . . Although this statement occurred after Hart
entered his plea, it is evidence that the trial judge himself
did not understand the consequences of the plea
agreement and, accordingly, did not give Hart correct
information on the consequences of his plea.
Id. at 258. This case differs from Hart in that McAdoo was
aware he was receiving a life sentence. Unlike the court in
Hart, the state court in this case made its sole misstatement at
the sentencing, only after the plea had been entered and
accepted. Any misstatement by the judge at sentencing could
not possibly have affected McAdoo’s understanding at the
time he entered his plea, the relevant time for our inquiry.
After an evidentiary hearing about whether McAdoo’s plea
was entered knowingly, the state court found that his alleged
misunderstanding did not invalidate the plea. The state court
accepted as true McAdoo’s evidence (in the form of Carrico’s
testimony) that he believed he would be paroled in seventeen
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
held that the United States Constitution requires the State to
furnish a defendant with information about parole eligibility
in order for the defendant’s plea of guilty to be voluntary.”);
James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995) (“The United
States Constitution does not require the State to furnish a

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No. 01-2050 McAdoo v. Elo 13
6As a practical matter, any information given to a defendant about
paro le at the time he pleads guilty is inherently imprecise. Both parole
eligibility and likelihood are unpredictable. A number of factors, such as
the earning of sentence credits, may affect the time at which a prisoner
becomes eligible for parole. Furthermore, factors such as the crimes of
conviction, the entire criminal record, and behavior in prison may impact
the likelihood of parole at a particular time after a prisoner becomes
eligible for parole. The likelihood of parole is also affected by changes
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
commutation procedures made paro le more difficult to attain). As
McAd oo’s evidence of the 2000 Michigan bar meeting suggests, the fact
that few Michigan prisoners sentenced to parolable life are paroled when
they are first eligible is attributable to a “political shift.” An assessment
of the likeliho od that M cAd oo will be paroled when he becom es eligible
in 201 0 would have been speculative in 199 5 whe n he pled guilty and is
speculative today, because there is no m eans o f ascertaining future paro le
boa rd policy or other relevant factors.
7 McAdoo d oes not claim that these evidentiary rulings made the
proceedings so fundamentally unfair as to dep rive him of due p rocess.
8McAd oo’s description of the state court ruling is not precisely
accurate. W hile certainly the state court left open the possibility of such
cross-examination, it did so only to the extent an underlying fact might be
relevant to the motion to withdraw the plea.
defendant with information about parole eligibility in order
for the defendant’s plea of guilty to be voluntary.”). 6
McAdoo’s argument that at the time of his guilty plea there
was confusion in Michigan about the consequences of a
parolable life sentence is intertwined with an argument that
the state court made erroneous evidentiary rulings at the
hearing on his request to withdraw his plea.7 First, McAdoo
contends that the state court erroneously excluded Martin’s
“state of mind” testimony. Second, he contends that the state
court’s incorrect ruling that, if McAdoo testified, he could be
cross-examined about the underlying facts of the case forced
him to elect not to testify.8 Whatever the merit of these
evidentiary arguments, the state court’s evidentiary rulings
14 McAdoo v. Elo No. 01-2050
did not affect the outcome of the state hearing. The state
court heard testimony from Carrico that McAdoo believed
that he would be eligible for parole in seventeen and a half
years. It accepted that testimony as truthful and also
determined that McAdoo’s belief was consistent with his
actual date of parole eligibility under Michigan law.
McAdoo attempts to characterize his misunderstanding
about the consequences of his sentence of parolable life as a
misunderstanding about more than his parole eligibility date
or the likelihood of parole. He argues that he in fact thought
a life sentence meant a twenty-year sentence. Although
McAdoo presented no evidence of this belief to the state
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
concurrently.”
In Ramos v. Rogers, 170 F.3d 560 (6th Cir. 1999), the
defendant attempted to withdraw his guilty plea after
sentencing. While accepting his plea, the state trial court
asked Ramos whether he understood that he was not going to
receive probation under any circumstances. Id. at 562.
Ramos responded that he understood. Later, he attempted to
withdraw his guilty plea, arguing that his lawyer had actually
promised him that he would receive “supershock probation.”
Id. at 562-63. On appeal, Ramos contended that he was told
only that he was ineligible for probation, but not that he was
ineligible for supershock probation. Id. at 563. He testified
that he did not know the difference between supershock
probation and “regular” probation. Id. The court was not
persuaded by the argument that the individual defendant’s
misunderstanding of a commonly used term rendered his plea
void. It held that “such word games cannot be permitted to
vitiate the use of simple words in court.” Id. at 565 n.6.
Ramos essentially asked the court to rely on his subjective
impression of the words used, garnered from his lawyer’s
misstatements, rather than the plain meaning of the statements
made in court. This court declined to do so:

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No. 01-2050 McAdoo v. Elo 15
If we were to rely on Ramos’s alleged subjective
impression rather than the record, we would be rendering
the plea colloquy process meaningless, for any convict
who alleges that he believed the plea bargain was
different from that outlined in the record could withdraw
his plea, despite his own statements during the plea
colloquy . . . indicating the opposite. This we will not
do, for the plea colloquy process exists in part to prevent
petitioners such as Ramos from making the precise claim
that is today before us. Where the court has scrupulously
followed the required procedure, the defendant is bound
by his statements in response to that court’s inquiry.
170 F.3d at 566 (internal quotation marks omitted).
The present case presents a closer question than Ramos.
However, as in Ramos, we hold that a term that is
unambiguous on its face and agreed to by the defendant in
open court will be enforced. See Hall v. Maggio, 697 F.2d
641, 643 (5th Cir. 1983) (per curiam) (holding that
defendant’s misunderstanding about life sentence, based on
“common knowledge” and attorney’s misadvice, did not
invalidate plea). We note that the term “life sentence” is not
ambiguous. The United States Constitution does not require
judges to explain the meaning of “life sentence” and other
unambiguous terms during the plea colloquy in order to
combat alleged misinformation that is not revealed on the
record. Cf. Boykin, 395 U.S. at 243-44 (requiring explicit
waiver of certain constitutional rights on the record when
court takes guilty plea); United States v. Hanley, 906 F.2d
1116, 1121 (6th Cir. 1990) (holding that defendant was not
entitled to relief on his claim of ineffective assistance of
counsel where his counsel incorrectly advised him that he
would be eligible for parole in a third of the time he received
for a sentence because the court informed the defendant of the
potential range of incarceration for his crime and advised him
that he would be sentenced under the guidelines); see also
Fed. R. Crim. P. 11(b) (setting forth the elements the federal
court must address when considering and accepting guilty
16 McAdoo v. Elo No. 01-2050
pleas). McAdoo acknowledged in court under oath that he
was agreeing to a life sentence, and the evidence and his
unsworn statement presented to the state court failed to show
that he reasonably believed he was actually agreeing to a
maximum sentence of only twenty years.
Therefore, the state court did not err in finding that
McAdoo understood the consequences of his plea. The state
court’s findings are entitled to considerable deference under
AEDPA. A federal court may grant habeas relief only where
the state court proceeding “resulted in a decision that was
based on an unreasonable determination of the facts in light
of the evidence presented.” 28 U.S.C. § 2254(d).
Considering the record here, we cannot say that the state
court’s determination that McAdoo knowingly and
voluntarily entered his plea was unreasonable.
B.
McAdoo next contends that his plea bargain was illusory
because he obtained no real benefit from entering a guilty
plea. The Michigan Parole Board rarely grants parole to
prisoners sentenced to parolable life, as explained by the
Michigan Court of Appeals in People v. Lino:
The reality is that those who receive nonmandatory life
sentences are rarely paroled after ten years, and, in fact,
the majority of defendants sentenced to life
imprisonment are never granted parole. . . . [F]rom 1986
through 1990, only seven prisoners serving parolable life
sentences were paroled. Of the 975 prisoners serving
such a term in 1990, only two were paroled. In 1991,
only one prisoner serving a parolable life term was
paroled. In 1992, again only one prisoner serving a
parolable life term was paroled.
539 N.W.2d at 549 (citations omitted). In view of these
statistics, McAdoo argues that his “promised benefit will not
materialize.” He argues that he is entitled to a new trial or a

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No. 01-2050 McAdoo v. Elo 17
second chance to negotiate a plea bargain because he
“expected he would be released on parole given the
information he received concerning the workings of parole in
Michigan.”
This argument fails, however, because McAdoo did obtain
his bargained-for benefit, the possibility of parole. Under
Michigan law, a defendant convicted of first-degree murder
faces a sentence of mandatory non-parolable life while
second-degree murder carries a sentence of parolable life or
any term of years. Pursuant to his plea agreement, McAdoo
was sentenced to three concurrent terms of parolable life. It
was not necessary for the prosecutors or the court to explain
the likelihood of parole to McAdoo. Hill, 474 U.S. at 56. A
defendant’s mere expectation about the parole process is
“simply no ground for habeas relief.” James, 56 F.3d at 667.
As the district court stated, “the relative reluctance of the
Michigan Parole Board to grant parole to prisoners sentenced
to life does not render his plea illusory.” We hold that
McAdoo derived a benefit by avoiding a trial on the first-
degree murder charge which was punishable by life without
parole and receiving instead a sentence of life with the
possibility of parole. As such, his plea was not illusory.
C.
Finally, McAdoo claims that his counsel, Batchelor, was
constitutionally ineffective for allegedly misinforming him of
the consequences of his plea. He requests that this issue be
remanded for an evidentiary hearing.
McAdoo presented his ineffective assistance of counsel
claim in his application for leave to appeal in both the
Michigan Court of Appeals and Michigan Supreme Court.
Neither court discussed the merits of the issue, and both
denied leave to appeal in orders of one sentence. When a
state court declines to address the merits of a properly raised
issue, this court conducts an independent review of the issue.
Harris v. Stovall, 212 F.3d 940, 943 (6th Cir. 2000) (requiring
18 McAdoo v. Elo No. 01-2050
federal court to undertake independent review of state court
decision when state court decides claim without explanation
of its decision). The independent review is not, however, “a
full, de novo review of the claims, but remains deferential
because the court cannot grant relief unless the state court’s
result is not in keeping with the strictures of the AEDPA.” Id.
at 943. Thus, the independent review determines whether the
state court decision is contrary to federal law, unreasonably
applies clearly established federal law, or is based on an
unreasonable determination of the facts in light of the
evidence presented. Id.
The Supreme Court has adopted a two-pronged test for
determining whether a defendant received adequate assistance
of counsel. Strickland v. Washington, 466 U.S. 668, 687
(1984). First, a defendant must show that counsel’s
performance was deficient, which “requires a 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 reviewing court should
“indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
Id. at 689. Second, a defendant must show that counsel’s
deficient performance prejudiced the defendant. Id. at 687.
In order to satisfy the “prejudice” requirement in a plea
agreement context, “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, 474 U.S. at 58-59.
McAdoo’s argument that his counsel was ineffective is
closely tied to his argument that his guilty plea was not
knowing and voluntary. With respect to the ineffective
assistance issue, his brief to this court states that he should
receive an evidentiary hearing because the district court
erroneously relied on the state court’s finding that McAdoo
understood the amount of prison time that he would be
required to serve. McAdoo’s reply brief simply states that the
district court erred in accepting the findings of the state trial

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No. 01-2050 McAdoo v. Elo 19
9At his state evidentiary hearing, McAdoo’s counsel did not
specifically ask Batchelor whether he made this statement to McAdoo.
Batchelor, however, implicitly denied the statement by saying that he and
court because McAdoo was denied a full and fair hearing on
the issue. His brief in the district court states that the
incorrect advice establishes deficiency of performance, as a
result of which he entered a plea that was not knowing and
voluntary, and “that fact establishes the prejudice prong.”
Considerable case law supports a determination that giving
erroneous advice about parole may constitute deficient
performance. Affirmative misstatements about parole
possibilities are more objectively unreasonable than failure to
inform the defendant about the parole possibilities. James, 56
F.3d at 667 (noting that “this Court and others have
recognized that affirmatively erroneous advice of counsel as
to parole procedure is much more objectively unreasonable
than would be a failure to inform of parole consequences”).
When defense counsel grossly misinforms a defendant about
details of parole and the defendant relies on that
misinformation, the defendant may have been deprived of his
constitutional right to counsel. See Strader v. Garrison, 611
F.2d 61, 65 (4th Cir. 1979). In Meyers v. Gillis, 142 F.3d 664
(3d Cir. 1998), a habeas petitioner argued that his counsel was
ineffective for giving him incorrect advice about parole
eligibility. The Third Circuit granted habeas relief, stating
that “Meyers did not realize he was, in all reality, pleading
guilty to an offense that did not allow him to receive parole in
the future.” Id. The court noted that while a defendant does
not have a constitutional right to be provided with parole
eligibility information prior to entering a plea, any
information that is provided by defense counsel must be
accurate. Id. at 667 n.2. McAdoo argues that Batchelor was
ineffective because he allegedly gave McAdoo incorrect
information regarding the terms of the plea agreement. He
claims that Batchelor told him that he would serve at most
twenty years in prison.9 Assuming McAdoo’s claim to be
20 McAdoo v. Elo No. 01-2050
M cAdoo did not discuss the Lifer Law. McAdoo , as previously noted,
did not testify.
true, his argument that his counsel’s performance was
deficient may have merit.
McAdoo’s ineffective assistance claim fails in any event,
however, because it would not have been unreasonable for the
state courts to conclude that he had failed to establish
prejudice had they included an analysis of the ineffective
assistance issue in their opinions. The prejudice prong of
Strickland requires McAdoo to show that there is a reasonable
probability that, but for counsel’s errors, he would not have
pleaded guilty and would have gone to trial.
McAdoo’s exchange with the state judge at resentencing is
at best ambiguous. While he suggested that he might have
fought the case if he had known he would serve a life
sentence, he also said that he did not want his children to be
subjected to a trial. Prior to this time McAdoo had been
present at the preliminary hearing and was aware that the
evidence against him, which included his daughters’
testimony, was overwhelming, a fact that the state courts were
entitled to take into account in determining whether he would
have pled guilty in the absence of any erroneous advice rather
than going to trial on first degree murder charges. McAdoo
also conceded that Batchelor and the court informed him that
he would receive three life sentences. He signed the plea
form indicating three life sentences. Moreover, Batchelor
testified that he did not discuss the Lifer Law with McAdoo.
Given this record, the state courts were not unreasonable in
rejecting McAdoo’s ineffective assistance claim. While they
could have concluded that McAdoo had established a
reasonable probability that he would not have pled guilty in
the absence of erroneous advice, it also would not have been
unreasonable for them to conclude otherwise. Thus, after
independent review, we conclude that the state court’s

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No. 01-2050 McAdoo v. Elo 21
decision was not contrary to federal law, did not unreasonably
apply federal law and was not based on an unreasonable
determination of the facts. See Harris, 212 F.3d at 943.
McAdoo requests an evidentiary hearing on the ineffective
assistance of counsel issue and argues that he did not receive
a “full and fair” hearing in state court. Under AEDPA, a
defendant who “failed to develop the factual basis of a claim
in State court proceedings” cannot obtain an evidentiary
hearing unless he satisfies two statutory exceptions not
applicable here. 28 U.S.C. § 2254(e)(2). However, when a
defendant diligently seeks an evidentiary hearing in the state
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
U.S. 420, 437 (2000). A defendant fails to develop the factual
basis of a claim only when he is at fault for failing to develop
the factual record in state court, as when he or his counsel has
not exercised proper diligence, or greater fault, in failing to
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.
22 McAdoo v. Elo No. 01-2050
10 Addressing the effect o f § 2254(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.
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.

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