*

The Honorable R. Leon Jordan, United States District Judge for the Eastern District of Tennessee, sitting by

designation. 

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0453p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellant,

v.

RICHARD MORRIS,

Defendant-Appellee.

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No. 05-2133

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 04-80200—Arthur J. Tarnow, District Judge.

Argued: July 20, 2006

Decided and Filed: December 7, 2006 

Before: MARTIN and COLE, Circuit Judges; JORDAN, District Judge.*

_________________

COUNSEL

ARGUED: Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY, Detroit,

Michigan, for Appellant. John R. Minock, CRAMER & MINOCK, Ann Arbor, Michigan, for

Appellee. ON BRIEF: Kathleen Moro Nesi, ASSISTANT UNITED STATES ATTORNEY,

Detroit, Michigan, for Appellant. John R. Minock, CRAMER & MINOCK, Ann Arbor, Michigan,

for Appellee.

_________________

OPINION _________________

BOYCE F. MARTIN, JR., Circuit Judge. Defendant Richard Morris was charged in

Michigan state court with three firearm and drug related charges. The investigation and prosecution

of his alleged crimes was conducted through Project Safe Neighborhoods, a joint effort between the

federal government and Michigan state authorities to address problems related to gun violence.

Morris initially pled not guilty to charges brought in state court, at which point they were dropped.

His case was then referred to the United States Attorney’s office and he was eventually indicted in

federal court. He subsequently filed a motion to “remand” to state court, on the basis that he was

denied effective assistance of counsel in the state proceedings. After conducting two days of

1
No. 05-2133 United States v. Morris Page 2

1

The pre-preliminary examination procedure was established to reduce jail overcrowding by expediting cases

via acceptance of plea offers.

2

It is unclear from the record whether the erroneous 62 to 68 month range was based on Morris pleading guilty

in federal court or going to trial, but because it was stated as a condition of him being generally unwilling to plead guilty,

presumably it was the estimate of the sentence he would have faced if found guilty at trial. 

evidentiary hearings, the district court agreed that Morris was denied effective assistance of counsel,

and granted his motion. The government now appeals.

I.

On February 25, 2004, Morris was arraigned in state court on charges of possession and

delivery of marijuana, felon in possession of a firearm, and unlicensed possession of a concealed

firearm, in violation of MICH.COMP. LAWS §§ 333.7401, 750.224(f), and 750.227(b), respectively.

He requested and was assigned counsel on February 26, 2004, the date on which communication

between state and federal authorities began regarding their cooperative effort to prosecute Morris.

On March 3, 2004, he took part in a “pre-preliminary examination”1

 as part of Project Safe

Neighborhoods. 

Immediately before this examination, Morris met with his attorney for the first time. She

advised him of a state plea offer as well as the federal sentencing guideline range as she understood

it. The state’s offer encompassed the charges of possession with intent to deliver marijuana and

unlicensed firearm possession, and included a sentence of one to four years for the marijuana count,

plus two consecutive years for the unlicensed firearm possession count. Morris’s attorney, who had

not practiced in federal court and had no experience interpreting the Federal Sentencing Guidelines,

had been given an estimate of his federal guideline range by the state prosecutor, who had himself

been advised of the range by an Assistant United States Attorney. This estimate was 62 to 68

months, and defense counsel passed it on in turn to Morris. As it turned out, this estimate was

incorrect. Morris was in fact subject to a federal guidelines range of 90 to 97 months if he pled

guilty, or 101 to 111 months if he did not.2

 Morris’s attorney, who had not received complete

discovery at the time, was able to speak only briefly with her client in the “bull pen.” The “bull pen”

is a cell located behind a courtroom. It is usually crowded with detainees and requires attorneys and

clients to shout their communication. Attorneys, court personnel, and officers often walk the

corridor where the bull pen is located, further diminishing attorney-client privacy. Morris’s attorney

was forced to communicate with him through a meshed screen in the presence of other detainees.

Immediately after this meeting, Morris was taken into the pre-preliminary examination,

where the prosecution made a plea offer — one to four years for the marijuana charge, plus two

consecutive years for the felony firearm charge. The offer required an immediate decision by

Morris. The judge informed him that if he declined, he would be referred to federal court to answer

charges which could result in a more severe sentence. Morris was not able to discuss his options

privately with his attorney. His attorney did not have knowledge of the strength of the case; nor was

she given time to investigate or interview witnesses. He rejected the state’s offer and was referred

to federal court pursuant to Project Safe Neighborhoods, with the understanding that his federal

guideline range would be 62 to 68 months.

The government filed an indictment in the district court on March 18, 2004. On

September 9, 2004, Morris filed a motion in the district court to remand to state court on the ground

that his state court trial attorney’s failure to properly advise him of the applicable federal sentencing

range, in conjunction with the system of attorney consultation, denied him his Sixth Amendment

right to counsel. After two days of evidentiary hearings, the district court granted Morris’s motion.

It reasoned that Project Safe Neighborhoods was a joint effort between state and federal prosecutors,
No. 05-2133 United States v. Morris Page 3

and it thus had “power to remedy any constitutional errors” in the state proceedings. D. Ct. Op. at

6. The district court also found that the pre-preliminary examination was a critical stage of the

proceedings at which point the right to counsel attached under Powell v. Alabama, 287 U.S. 45, 57

(1932). Finally, the district court concluded that Morris suffered a constructive absence of counsel

and was denied effective assistance of counsel, and that the appropriate remedy was to dismiss the

federal charges and reinstate the state plea offer. 

II.

In reviewing the dismissal of an indictment, we review de novo the district court’s legal

conclusions, and “the factual findings supporting its ruling for clear error.” United States v. O’Dell, 154 F.3d 358, 360 (6th Cir. 1998).

A. The District Court’s Ability to Remedy the Constitutional Violation in State Court 

At the outset, we address the government’s claim that the district court had no authority to

address perceived constitutional errors in the state proceedings by dismissing the federal indictment

and “remanding” to state court. We agree with the government that the district court lacked

jurisdiction to remand the case to state court. The district court does have authority to enforce a plea

agreement, however. United States v. Lukse, 286 F.3d 906, 910 (6th Cir. 2002). We have held that

plea agreements are contractual in nature and interpreted using traditional principles of contract law,

and that a district court can utilize specific performance to remedy any breach of the agreement. Id. Of course in this case an agreement was never reached on the state court plea offer. Even so, under

Hill v. Lockhart, 474 U.S. 52 (1985), a criminal defendant is entitled to competent advice of counsel

in plea negotiations. Further, where the state extends a plea offer but simultaneously denies a

defendant the effective assistance of counsel at the plea stage, a necessary part of the district court’s

remedial authority include its ability to put the defendant back in the position he would have been

but for the ineffective assistance of counsel. Tennessee v. Turner, 858 F.2d 1201, 1205 (6th Cir.

1988), vacated on other grounds, 492 U.S. 902 (1989), reinstated, 726 F. Supp. 1113 (M.D. Tenn.

1989), aff'd, 940 F.2d 1000 (6th Cir. 1991), cert. denied, 502 U.S. 1050 (1992) (“[T]he only way

to neutralize the constitutional deprivation suffered by Turner would seem to be to provide Turner

with an opportunity to consider the State’s two-year plea offer with the effective assistance of

counsel.”); United States v. Allen, 53 Fed. App’x 367, 373-74 (6th Cir. 2005) (“[I]f it were shown

that defense counsel provided ineffective assistance, the remedy is to compel the government to

reinstate the prior plea offer, restoring Mr. Allen to where he was before ineffective assistance was

rendered.”). 

This case is different from Turner or Allen, in that Allen involved a plea offer made in a

federal prosecution that was under direct review, and Turner was a habeas corpus appeal, where the

federal courts have explicit statutory authority to remedy constitutional violations in state court

prosecutions. Here, instead, we are faced with a federal prosecution, before us on direct review,

where the defendant seeks to reinstate a plea offer made in state court. The rationale of Turner and

Allen applies with equal force here, however, because there is significant evidence in the record that

the United States Attorney’s office was involved with the state court plea negotiations pursuant to

Project Safe Neighborhoods. Most importantly, the United States Attorney’s Office was involved

in deciding whether a plea offer would be made available to Morris in state court, and the state court

plea offer included an agreement that Morris would not be prosecuted in federal court, even though

the state and federal governments could have chosen to pursue separate prosecutions. Because the

United States Attorney’s Office made itself a party to the state court plea offer, the district court was

justified in enforcing the plea offer against it based on traditional principles of contract law.

Although there is no basis for the purported remand to state court and the related reinstatement of
No. 05-2133 United States v. Morris Page 4

3

By way of analogy, we note that dismissal of an indictment is part of a district court’s authority to remedy

other constitutional violations, such as in cases of prosecutorial misconduct. See United States v. Adamo, 742 F.2d 927,

942 (6th Cir. 1984). Dismissal of the indictment here goes no further than the district court’s remedial authority in that

context. 

4

The district court also expressed its skepticism with the fee system for appointed counsel, by which they are

paid $40 for appearing at the pre-preliminary hearing when no plea is entered, and even if they request a continuance

are paid no additional fee beyond the $40, while if their client accepts the plea, they receive “a minimum of $500 to

$700.” D. Ct. Op. at 12. This fee structure clearly provides counsel an incentive to encourage the defendant to accept

the state’s plea offer immediately, and a disincentive to seek more time to investigate and seriously weigh the merits of

a defendant’s case. Although the district court stated that “Project Safe Neighborhoods, on an institutional level, is a

state barrier to counsel for indigent defendants,” D. Ct. Op. at 13, (emphasis in original) and the district court’s troubling

observations as to the incentives created by the fee structure find support in the record, it appears to have based its

ultimate determination on the time constraints and lack of privacy, rather than the fee structure. Our review thus focuses

primarily on these factors, even though we are similarly concerned by the incentives created by the fee structure. 

the state plea offer, dismissal of the federal indictment was within the district court’s authority3 to

put Morris back in the position he would have been in but for the denial of his right to counsel in

light of the federal prosecutor’s entanglement with the state plea process. 

B. Denial of Sixth Amendment Right to Counsel

The government also challenges the district court’s conclusion that Morris was denied the

effective assistance of counsel in violation of the Sixth Amendment. The district court’s ruling was

based both on the rule of constructive absence of counsel from United States v. Cronic, 466 U.S. 648

(1984), and its determination that Morris had a viable claim of ineffective assistance of counsel

under Strickland v. Washington, 466 U.S. 668 (1984) and Hill. We agree with both of these

conclusions.

We have described the standard for constructive denial of counsel under Cronic as follows:

If a claim is governed by Cronic, . . . the defendant need not demonstrate any

prejudice resulting from the lack of effective counsel; in some cases, the Sixth

Amendment violations are “so likely to prejudice the accused that the cost of

litigating their effect in a particular case is unjustified.” Cronic, 466 U.S. at 658.

Three types of cases warrant Cronic’s presumption-of-prejudice analysis. The first

is the complete denial of counsel, in which “the accused is denied the presence of

counsel at ‘a critical stage.’” The second is when counsel “entirely fails to subject

the prosecution’s case to meaningful adversarial testing.” The third is when counsel

is placed in circumstances in which competent counsel very likely could not render

assistance. 

Mitchell v. Mason, 325 F.3d 732, 741-742 (6th Cir. 2003). 

Based on this standard, the district court found that Wayne County’s practice of assigning

counsel shortly before the pre-preliminary examination amounts to a “state impediment to effective

assistance of counsel.” D. Ct. Op. at 13. The district court based this determination on the

extremely short time period that the system allows appointed counsel to prepare for the hearing, the

lack of privacy afforded in the bull pen, which prohibits counsel from having a confidential,

privileged conversation with the client before the hearing, and the requirement that a defendant make

an immediate decision regarding the plea offer.4

 As the district court pointed out, ABA Standards

for Criminal Justice provide that a thorough discussion with the client is necessary at the outset of

representation, which is entirely precluded by the lack of time and confidentiality under the Wayne

County system. See 1 ABA Standard for Criminal Justice 1(a) & (b). Further, defense counsel is
No. 05-2133 United States v. Morris Page 5

5

This is not to say that the government is somehow prohibited from making “take it or leave it” plea offers, but

merely that by making such an offer, they cannot thereby avoid the requirement of Hill that a defendant be provided

effective assistance of counsel at the plea-bargaining stage of a criminal proceeding. 

given very little time to review any discovery material before advising her client regarding a plea.

Although the district court did not explicitly state which type of “Cronic failure” it found this

situation analogous to, given its factual findings, we have no trouble agreeing that in this case

“counsel was placed in circumstances in which competent counsel very likely could not render

assistance.” Mitchell, 325 F.3d at 742. As a result, Morris is presumed to have been prejudiced by

the situation in which his attorney was placed, and has a valid claim of constructive denial of

counsel.5 

The government contends that “[t]he fact that his attorney actually gave him legal advice is

simply inconsistent with a conclusion that counsel was not acting as a lawyer during the defendant’s

consideration of the state plea offer.” This argument ignores the rule from Cronic that constructive

denial of counsel can occur under circumstances where even competent counsel could not render

assistance. The fact that Morris’s counsel gave him some advice does not preclude a finding of

constructive denial of counsel under this standard. Rather, the circumstances, such as the lack of

time for adequate preparation and the lack of privacy for attorney-client consultation, would have

precluded any lawyer from providing effective advice. This is demonstrated here in part by the fact

that Morris’s counsel was precluded from taking basic preparatory steps such as looking at his prior

record in conjunction with the federal sentencing guidelines so as to make an accurate prediction

of his guideline range, and instead had to rely on the erroneous estimate provided by an Assistant

United States Attorney of 62-68 months, where the actual guideline range was either 90-97 months

or 100-111 months, or roughly 50 percent higher than the estimate provided. The inability of

Morris’s counsel to accurately estimate his federal sentencing guideline range and the resulting

incorrect estimate factored into Morris’s calculus in contemplating the state’s plea offer.

We also agree with the district court that Morris was denied the effective assistance of

counsel under Strickland and Hill. Strickland requires two elements to establish an ineffective

assistance of counsel claim: (1) counsel’s performance must have fallen below an objective standard

of reasonableness, and (2) there must be a reasonable probability that but for the deficient

performance, the outcome of the proceedings would have been different. 466 U.S. at 694. Hill

applied this test in the context of plea offers, requiring that a defense attorney inform her client of

plea offers and the potential penalties, and held that to establish an ineffective assistance of counsel

claim, a defendant must show (1) that he did not receive such advice, and (2) “a reasonable

probability that he would have pleaded guilty had he received proper advice.” Griffin v. United

States, 330 F.3d 733, 738 (6th Cir. 2003). 

This Court has given special weight to significant disparities between penalties offered in

a plea and penalties of a potential sentence in determining whether a defendant suffered prejudice

by not accepting a plea offer. Id. at 737 (“[A] substantial disparity between the penalty offered by

the prosecution and the punishment called for by the indictment is sufficient to establish a reasonable

probability that a properly informed and advised defendant would have accepted the prosecution's

offer.”) (quoting Dedvukovic v. Martin, 36 Fed. App’x 795, 798 (6th Cir. 2002)). The district court

followed this approach here, reasoning that Morris stood to be sentenced to 101 to 111 months if he

did not plead guilty and was convicted in federal court, which was almost double the 60 to 68

months estimated when the state made its initial plea offer. Because Morris’s attorney was

unfamiliar with the Federal Sentencing Guidelines and was forced to rely on the erroneous estimate

provided by the prosecutor, her advice to Morris “fell below an objective standard of

reasonableness.” Because Morris, in turn, relied on the erroneous information, he suffered prejudice
No. 05-2133 United States v. Morris Page 6

6

The government raised this issue with regard to the constructive denial of counsel claim as well. Because this

argument only goes to the prejudice prong of Hill — i.e., whether the defendant would have pled differently without the

erroneous advice — and because prejudice is presumed in a constructive denial of counsel claim under Cronic, this point

is not relevant to the constructive-denial-of-counsel claim. 

and his “ability to make an intelligent decision regarding a plea offer [was] severely undermined.”

Id. (citing United States v. Day, 969 F.2d 39, 43 (3d Cir. 1992)). 

The government contends that it is relevant for Morris’s Strickland claim that he maintained

his innocence in discussions with his attorney pursuant to the state-court proceedings.6

 As the

district court found, factoring in Morris’s assertion of his innocence would inappropriately punish

him for exercising his Fifth Amendment right against-self incrimination. Considering that the lack

of privacy afforded Morris and his counsel prevented him from having a confidential consultation,

his assertion of his innocence is even more irrelevant, as it was not even made in a confidential or

privileged conversation. Further, viewing Morris’s assertion of his innocence as a relevant

consideration would be at odds with this Court’s precedent, which clearly establishes 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.” Griffin, 330 F.3d at 738.

III.

For the foregoing reasons, we affirm the district court’s conclusion that Morris was denied

the effective assistance of counsel under both Cronic and Hill. Because the district court lacks

authority to remand the case to state court, we reverse that portion of its order, but conclude that it

does have the authority to dismiss the federal indictment in order to remedy the constitutional

violation. The case is remanded to the district court for further proceedings consistent with this

opinion.