NOT RECOMMENDED FOR PUBLICATION

File Name: 24a0081n.06

Case No. 21-5733

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

AWEIS HAJI-MOHAMED,

Petitioner-Appellant,

v.

UNITED STATES OF AMERICA,

Respondent-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE MIDDLE 

DISTRICT OF TENNESSEE

AMENDED OPINION

Before: BATCHELDER, BUSH, and DAVIS, Circuit Judges

STEPHANIE DAWKINS DAVIS, Circuit Judge. Petitioner Aweis Haji-Mohamed is a 

federal prisoner who seeks to vacate, set aside or correct his conviction and sentence pursuant to 

28 U.S.C. § 2255 for two offenses involving the illegal use of firearms. This appeal revolves 

around a singular mistake that carried through from Haji-Mohamed’s guilty plea to his sentencing. 

Specifically, at his plea hearing, the district court informed Haji-Mohamed, and his plea documents 

reflected, that he faced a statutory mandatory minimum sentence of 35 years’ imprisonment. But 

this information was wrong. His correctly calculated statutory-minimum sentence was 32 years.

Haji-Mohamed pleaded guilty to two of the nineteen counts brought against him after reaching a 

plea agreement with the government that called for a sentence of 35 years’ imprisonment. 

Consistent with the plea agreement, he received a sentence of 35 years. Haji-Mohamed now claims 

his attorney was ineffective in failing to (1) raise the minimum-sentence-calculation error during 
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an earlier motion to withdraw his guilty plea and (2) advise him that the error provided meritorious 

grounds for appeal. He also insists that his guilty plea was rendered involuntary and unintelligent 

due to the mistaken information he received about the mandatory-minimum sentence. Because 

Haji-Mohamed cannot demonstrate the requisite prejudice to sustain his claims and he has 

procedurally defaulted on the latter claim, he cannot meet his burden for collateral relief. We 

therefore affirm the decision of the district court.

I.

In the early months of 2015, Haji-Mohamed was involved in a series of criminal episodes 

in and around two public housing developments in Nashville, Tennessee that ultimately led to 

charges against him in both state and federal court. In particular, Haji-Mohamed and his 

confederates perpetrated several armed robberies against individuals and at least one area business, 

brandishing and in more than one instance, firing pistols during the course of these activities. 

Things came to a head when local law enforcement arrested Haji-Mohamed for the murder of 

Isaiah Starks in 2015. A federal grand jury handed down indictments against Haji-Mohamed and 

others for offenses ranging from robbery and conspiracy to commit robbery in violation of the 

Hobbs Act, 18 U.S.C. § 1951, et seq., to a variety of firearm offenses. Altogether, Haji-Mohamed 

faced nineteen federal felony charges as well as a first-degree murder charge for Starks’s death in 

Tennessee state court. 

Following global plea negotiations to resolve both the federal and state charges against 

him, Haji-Mohamed pleaded guilty to Counts 8 and 13 of the federal indictment. These two counts

charged him with discharging a firearm during and in relation to a crime of violence and 

brandishing a firearm during and in relation to a crime of violence in violation of 18 U.S.C. 

§ 924(c)(1)(A)(iii) and (ii) respectively. At the plea hearing, the parties submitted a plea petition 
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and a plea agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C) (“C-Plea”).

1

 The documents 

correctly identified the maximum sentence as imprisonment for life for both counts, but they each

contained incorrect information about Haji-Mohamed’s statutory minimum sentence. 

Specifically, they recited his statutory mandatory-minimum sentence as 10 years for the 

discharging count and a consecutive 25 years for the brandishing count—for a total of 35 years.

But, as this court explained in United States v. Washington, 714 F.3d 962, 970 (6th Cir. 

2013), the rule of lenity applies such that when a defendant faces multiple § 924(c) counts in a 

single indictment, the count carrying the lowest minimum sentence should be counted first for 

purposes of administering consecutive penalties. Applying this rule of ordering to HajiMohamed’s two counts means that the brandishing count, which carried a minimum sentence of 7 

years for a first offense, must come before the discharge count, which carried a minimum of 10 

years when counted first.2 When listed second in the ordering, either count (brandishing or 

discharging) would then carry a consecutive mandatory-minimum term of 25 years. Hence, the 

total mandatory-minimum sentence was 32 years—three years less than the agreed-to-term stated 

in the plea documents. This erroneous calculation was repeated during the plea hearing when the 

district court informed Haji-Mohamed that the statutory mandatory minimum for the discharge 

count was “at least ten years” and that the penalty for the brandishing count was “a mandatory

[minimum] consecutive imprisonment of at least 25 years.” (R. 624, PageID 2299, 2300). 

While the implications of Washington went undetected, the potential effect of relatively 

contemporaneous statutory changes did not. After Haji-Mohamed’s guilty plea, but before his 

1 Under a C-Plea, if the court accepts the parties’ agreed-upon sentencing range or specific term of years, 

then it retains no discretion to depart from the agreed amount.

2 The minimum sentences here refer to the state of the law at the time Haji-Mohamed committed the charged 

offenses and pleaded guilty. See 18 U.S.C. § 924(c) (2016).
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sentencing, Congress passed the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5194 

(2018), which, if applied, would have reduced the mandatory-minimum sentence for the two 

offenses to which Haji-Mohamed pleaded guilty to 17 years. He filed a motion to withdraw the 

guilty plea for this reason. The district court held a hearing on the motion, but Haji-Mohamed did 

not raise the so-called Washington error during the hearing. Haji-Mohamed testified at the hearing 

that he accepted the plea agreement for 35 years because it was his mandatory minimum. He 

argued that he would not have pleaded guilty and accepted a 35-year sentence if the mandatory 

minimum was only 17 years. The district court denied the motion and later sentenced him to 35 

years imprisonment in accordance with his C-Plea. He did not file a direct appeal. 

Haji-Mohamed later filed the instant petition to vacate his sentence pursuant to 28 U.S.C. 

§ 2255, arguing that the district court’s failure to advise him of the correct minimum sentence 

violated Fed. R. Crim. P. 11 (b)(1)(I), thus rendering his plea unintelligent and involuntary, and 

that his trial counsel was ineffective both in his handling of the motion to withdraw his guilty plea 

and in failing to properly advise him about the decision to appeal. The district court did not hold 

an evidentiary hearing on the petition. Instead, it considered the following: declarations from HajiMohamed and his trial counsel, David Komisar, filed by the parties with their briefing; the plea 

colloquy; testimony from the evidentiary hearing on the motion to withdraw his guilty plea; and 

other evidence in the record. 

After considering the evidence, the district court concluded that the 35-year agreed-upon 

sentence was not based on the mandatory minimum. It credited the government’s evidence that 

the parties negotiated an agreement as to the total term of years and then chose the counts to which 

Haji-Mohamed would plead guilty to match that term of years. The district court also concluded 

that Haji-Mohamed’s lawyer was not ineffective by failing to recognize and raise the minimum-
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sentence error in the context of his motion to withdraw his plea. More specifically, the district 

court found that Haji-Mohamed could not demonstrate the requisite prejudice required under

Strickland v. Washington, 466 U.S. 668 (1984), because he agreed to serve a term of 35 years 

under his plea agreement, not to serve whatever the mandatory minimum turned out to be for the 

charges to which he pleaded guilty. Finally, the court concluded that the failure to raise United 

States v. Washington did not meet the benchmark for ineffectiveness under Strickland because the 

case was not directly applicable given the nature of C-Pleas. As such, the district court concluded 

it was unreasonable to expect counsel to have raised Washington, which established a rule “that 

applied in an entirely different context.” This appeal followed. 

II.

Ineffective-assistance-of-counsel claims “may be brought in a collateral proceeding under 

§ 2255, whether or not the petitioner could have raised the claim on direct appeal.” Massaro v. 

United States, 538 U.S. 500, 504 (2003). We “review the denial of a § 2255 motion de novo,” 

including the resolution of “claims of ineffective assistance of counsel, which are mixed questions 

of law and fact.” Wingate v. United States, 969 F.3d 251, 255 (6th Cir. 2020) (quotation and 

brackets omitted). We “review the district court’s factual findings for clear error.” Id. The court 

may address Strickland’s prongs in any order and need not address both prongs “if [the movant] 

makes an insufficient showing on one.” Id. at 255 (quoting Strickland, 466 U.S. at 697). 

III.

Ineffective Assistance of Counsel. Haji-Mohamed maintains that his trial lawyer was 

ineffective in failing to recognize and assert, as additional grounds to support his motion to 

withdraw the guilty plea, that the district court’s incorrect advice as to the mandatory-minimum 
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sentence was an error under Rule 11 that rendered his plea involuntary and unintelligent. He also 

argues that counsel was ineffective in failing to advise him to file a direct appeal on this issue. 

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy 

the right . . . to have the assistance of counsel for his defense.” U.S. Const. amend. VI. A criminal 

defendant’s Sixth Amendment right to counsel necessarily implies the right to “reasonably 

effective assistance” of counsel. Strickland, 466 U.S. at 687. To succeed on a claim that trial 

counsel was ineffective under Strickland, a petitioner must affirmatively prove both that the 

attorney’s performance was deficient and that petitioner was prejudiced as a result. Id. As to 

deficient performance, the proper inquiry is whether counsel’s representation sank to the level of 

“incompetence under ‘prevailing professional norms,’” as opposed to whether counsel simply 

departed from best, or even common practice. Harrington v. Richter, 562 U.S. 86, 105 (2011)

(quoting Strickland, 466 U.S. at 690). And as to prejudice, the court must determine if the 

petitioner has demonstrated a substantial likelihood of a different outcome were it not for counsel’s 

deficiencies. Id. at 112. Applying these standards, we consider Haji-Mohamed’s claims in turn.

A. The Motion to Withdraw the Guilty Plea

The general rule is that “failure to provide professional guidance to a defendant regarding

his sentence exposure prior to a plea may constitute deficient assistance.” Moss v. United States, 

323 F.3d 445, 474 (6th Cir. 2003) (citing Magana v. Hofbauer, 263 F.3d 542, 550 (6th Cir. 2001)). 

Where a petitioner alleges that his counsel failed to provide such guidance, in particular, that 

counsel was ineffective in litigating his motion to withdraw a guilty plea, we have found that

applying Strickland requires a petitioner to show “a reasonable probability that the district court 

would have granted [the] motion.” United States v. Wynn, 663 F.3d 847, 852 (6th Cir. 2011). 
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To withdraw a guilty plea post-acceptance by a district court, a defendant must “show a 

fair and just reason for requesting the withdrawal.” Fed. R. Crim. P. 11(d)(2)(B). And while “a 

district court’s failure to correctly provide the defendant with all the information required by Rule 

11 may constitute a ‘fair and just reason’ to request the withdrawal of a guilty plea[,]” United 

States v. Freeman, 17 F.4th 255, 262 (2d Cir. 2021), on direct appeal, a Rule 11 violation would

not amount to a “fair and just reason” to withdraw a guilty plea when it had no impact on the 

defendant’s decision to plead guilty, United States v. Hogg, 723 F.3d 730, 752 (6th Cir. 2013). 

See id. at 744 (noting that in the context of a motion to withdraw a guilty plea, “we [] must consider 

whether this Rule 11 violation was harmless” under Rule 11(h)); see also United States v. Vonn, 

535 U.S. 55, 72, n.9 (2002) (recognizing that appellate courts “have held that a Rule 11 violation 

that is harmless under Rule 11(h) does not rise to the level of a ‘fair and just reason’ for 

withdrawing a guilty plea”) (collecting cases).

As explained in Hogg, where the Rule 11 violation was not raised in the district court, as 

is the case here, rather than conducting a harmless error inquiry (i.e., whether the error had a 

substantial impact on his rights), plain error review would apply. Hogg, 723 F.3d at 737; see also

Williams v. United States, 47 F. App’x 363, 365–66, 368–69 (6th Cir. Sept. 25, 2002) (applying 

plain error review and finding no error where the district court stated the incorrect mandatory 

minimum sentence because the defendant’s PSR accurately disclosed the correct minimum 

sentence and the defendant failed to object to this portion of the report). The plain error standard 

means, among other things, that a defendant “‘must show a reasonable probability that, but for the 

error, he would not have entered the plea.’” Hogg, 723 F.3d at 737 (quoting United States v. 

Dominguez-Benitez, 542 U.S. 74, 83 (2004)). So how do these review standards interact with our

inquiry on collateral review—considering that claims for ineffective assistance of counsel should 
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most frequently be brought through a § 2255 motion instead of a direct appeal? Ignoring this 

wrinkle would unjustifiably permit defendants to circumvent plain error analysis when we weigh 

prejudice on collateral review. Thus, for purposes of showing prejudice under Stickland, in

considering whether there is a reasonable probability that Haji-Mohamed would have prevailed on 

a motion to withdraw his plea based on a Rule 11 error, we may consider whether there is a 

reasonable probability that the Rule 11 error caused his decision to plead guilty. Cf. Ward v. 

Jenkins, 613 F.3d 692, 699 (7th Cir. 2010) (ineffectiveness claim on collateral review holding that, 

“[t]o demonstrate prejudice, [Petitioner] would have to show that (1) there was a reasonable 

probability that, but for counsel’s errors, he would not have pled guilty and would have insisted 

on going to trial and (2) there was a reasonable probability that the court would have granted his 

motion to withdraw his guilty plea.”)

Deficiency of Counsel. The district court found that trial counsel’s failure to identify and 

raise the mandatory-minimum error was not objectively deficient because Washington was not 

directly applicable and the Sixth Amendment did not require counsel to be a “lexicon of all 

published cases,” or at least not those that establish a rule that applies in a different context. (R. 

20, PageID.159). But the statute of conviction, not just Washington, provides the source of the 

Rule 11 error. Section 924(c)(1)(A)(ii) expressly provides a mandatory-minimum sentence of 

seven years for “brandishing” a firearm and § 924(c)(1)(A)(iii) sets forth a mandatory-minimum 

sentence of 10 years for “discharging” a firearm. Moreover, Rule 11(b)(1)(I) imposed an 

obligation on the district court to inform the defendant of any mandatory minimum penalty. FED.

R. CRIM. P. 11(b)(1)(I). Consequently, the “ordering” of offenses for sentencing discussed in 

Washington is not the entirety of the issue. Rather, the question is whether counsel’s failure to

identify and raise the error made by the court under Rule 11—to inform Haji-Mohamed that the 
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mandatory minimum for a § 924(c)(1)(A)(ii) brandishing offense is only seven years and then misordering the offenses to reach the incorrect total of 35 years—constitutes objectively deficient 

performance. 

Notably, “[s]trategic choices made after thorough investigation of law and facts relevant to 

plausible options are virtually unchallengeable; and strategic choices made after less than complete 

investigation are reasonable precisely to the extent that reasonable professional judgments support 

the limitations on investigation.” Strickland, 466 U.S. at 690–91. Hence, counsel has a duty either 

to conduct a reasonable investigation or to make a reasonable decision that renders a particular 

investigation unnecessary. Id. Despite misgivings about the wisdom of such action, Komisar 

decided to move forward with a motion to withdraw Haji-Mohamed’s guilty plea based on changes 

made by the Fair Sentencing Act. He did not pursue withdrawal based on the Rule 11 error.

Here, Komisar simply says that he did not realize that the mandatory minimum for the two 

counts was 32 years and that even if he had, the parties would have reworked the plea agreement 

to get to 35 years. Thus, he did not take additional steps to apprise himself of the applicable 

mandatory minimum and forged ahead with advising his client without that information in hand. 

It is therefore hard to say that his failure to advise Haji-Mohamed to pursue the Rule 11 violation 

as part of his motion to withdraw his guilty plea was a conscious decision. To be sure, such 

circumstances raise serious questions about whether counsel’s failure is objectively deficient. See 

Smith v. United States, 348 F.3d 545, 553 (6th Cir. 2003) (“A criminal defendant has a right to 

expect at least that his attorney will . . . explain the sentencing exposure the defendant will face as 

a consequence of exercising each of the options available.”); Hinton v. Alabama, 571 U.S. 263, 

274 (2014) (“An attorney’s ignorance of a point of law that is fundamental to his case combined 

with his failure to perform basic research on that point is a quintessential example of unreasonable 
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performance under Strickland.”); Hill v. Lockhart, 474 U.S. 52, 62 (1985) (White, J., concurring) 

(“The failure of an attorney to inform his client of the relevant law clearly satisfies the first prong 

of the Strickland analysis.”). Yet, counsel’s overall plea negotiation strategy to reach a global 

agreement for a term of years that would encompass all charges stemming from Haji-Mohamed’s 

then-pending state and federal charges—irrespective of the mandatory minimum sentence—is 

hard to second-guess or label objectively unreasonable. In the end, we need not conclude one way 

or the other on this aspect of counsel’s performance because Haji-Mohamed’s claim fails on the 

prejudice prong regardless.

Prejudice. On the question of prejudice, we ask but for counsel’s Rule 11 error, whether 

Haji-Mohamed could show a reasonable probability that he would have prevailed on his motion 

to withdraw his guilty plea under the “fair and just” standard. That standard requires a showing 

that the misstated mandatory minimum formed the basis for his decision to enter a guilty plea. 

While Haji-Mohamed declares that he would have declined to plead guilty had he known of the 

32-year mandatory minimum, he notably stops short of stating that he would have gone to trial. 

Enhancing his bargaining position may explain this equivocation. The district court aptly observed 

that by the time Haji-Mohamed moved to withdraw his guilty plea, the bargaining landscape had 

shifted: his co-defendant had been acquitted of the Cricket store robbery and a primary witness to

the murder charge had died. Thus, “buyer’s remorse” was more than a passing theory for his 

motivation.

True, Haji-Mohamed sought to withdraw his guilty plea upon passage of the Fair 

Sentencing Act when his mandatory-minimum sentence was potentially cut in half. But this fact, 

reflecting his subjective judgment in a different, though similar context, even considered together

with Haji-Mohamed’s declaration is not enough. Like his testimony at the hearing on his motion 
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to withdraw his guilty plea, Haji-Mohamed’s declaration supporting his § 2255 petition states that 

if he had known the aggregate mandatory-minimum sentence was only 32 instead of 35 years, he 

would not have pleaded guilty. But this is seemingly in tension with his own admission that he 

decided to plead guilty and to accept the plea bargain “mainly” because he thought there was a 

substantial chance that he would be convicted of one of the robbery counts involving the Cricket 

mobile phone store and one of the other (dismissed) § 924(c) counts. Considering this fact, his 

further point that he disagreed with Komisar on the strength of the state murder charge does not 

seem meaningful to the question of whether he would have withdrawn his guilty plea. 

For his part, Komisar explained in his declaration that he believed (if Haji-Mohamed did 

not plead guilty) there was a high probability that Haji-Mohamed would be convicted of the state 

murder charge given the number of witnesses to that crime, and that he would likely face 51 years 

in state prison before he would be eligible for parole. According to Komisar, the 51-year number 

drove the plea process; he told the government’s attorney that any plea agreement must include 

the murder charge. During negotiations, the government first offered a global plea deal of 40 

years’ imprisonment; Komisar countered with 30 years; and they settled on 35 years. Komisar 

explained that while Haji-Mohamed was unhappy with the offer, he ultimately seemed to 

appreciate that a global agreement to 35 years was better than a potential 51-year state penalty plus 

whatever the federal sentence turned out to be if he did not accept the plea offer. Komisar declared

that it did not matter how the parties arrived at 35 years as far as the combination of counts. Picking 

counts “was simply a device to get to the agreed number of 35 years.” 

The district court found that Haji-Mohamed’s statement that the misstated mandatory 

minimum motivated his acceptance of the plea offer was not credible. The court based its finding

on Haji-Mohamed’s prior testimony—including the court’s recollection of his demeanor while 
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testifying, and the evidence in the record showing that the 35 years was driven by factors other 

than the mandatory minimum. We have previously held that “[i]n the absence of a clear basis in 

the record for rejecting the district court’s credibility determinations, we are bound by those 

determinations.” United States v. Hudson, 405 F.3d 425, 442 (6th Cir. 2005). Indeed, “[f]indings 

of fact anchored in credibility assessments are generally not subject to reversal upon appellate 

review.” Id. (quoting United States v. Taylor, 956 F.2d 572, 576 (6th Cir. 1992) (en banc)). And 

we see no clear basis for rejection here. There is no reason to believe that learning the correct 

mandatory minimum was 32 years rather than 35 years would have motivated him to proceed to 

trial rather than to remove the “substantial chance” of conviction on the counts he referenced in 

his declaration. 

Moreover, the additional evidence in the record supports the district court’s conclusion that 

Haji-Mohamed did not suffer the requisite prejudice to sustain his claim. In particular, while HajiMohamed now says that he was less concerned about the state murder charge, it loomed large over 

the plea negotiations—so much so that Komisar insisted that the government coordinate its offer 

with the state prosecutor overseeing the murder case. And tellingly, the parties agreed to the 

number of years acceptable to both sides before settling on which of Haji-Mohamed’s 19 counts 

would be the subjects of the guilty plea. Further, the agreement disposed of 17 other federal counts

that were serious felonies. And while Haji-Mohamed expressed frustration about the rapidlyapproaching trial date, he ultimately praised the result, stating during the plea hearing, “Mr. 

Komisar even—regardless of our differences, he’s able to still give me this 35.” (Case No. 15-cr00088, R.624, PageID.2306, 2310). Later in the plea colloquy, he confirmed that he was giving 

up “the right to a trial and all of the defense strategy that [he] could produce and—and could be 

made on [his] behalf at trial[].” (Id. at 2313). Thus, on balance, the contemporaneous evidence of 
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Haji-Mohamed’s preference to plead guilty rather than go to trial undermines his claim to the 

contrary. See Lee v. United States, 582 U.S. 357, 369 (2017) (explaining that guilty pleas should 

not be upset merely based on a defendant’s post hoc assertions that he would not have pleaded 

guilty but for counsel’s errors. Instead, judges should “look to contemporaneous evidence to 

substantiate a defendant’s expressed preferences.”). As a result, he cannot demonstrate a 

substantial likelihood of a different result and cannot satisfy Strickland’s standard for prejudice.

B. Failure to Appeal

With respect to Haji-Mohamed’s argument that counsel was ineffective because he failed 

to advise him to file a direct appeal raising the Rule 11/voluntariness error, we conclude that this 

argument fails for reasons largely similar to those discussed above. 

“In those cases where the defendant neither instructs counsel to file an appeal nor asks that 

an appeal not be taken, . . . the question [is] . . . whether counsel in fact consulted with the 

defendant about an appeal.” Neill v. United States, 937 F.3d 671, 676 (6th Cir. 2019) (quoting 

Roe v. Flores-Ortega, 528 U.S. 470, 478 (2000)). In this context, “consult” means to advise “the 

defendant about the advantages and disadvantages of taking an appeal, and [to] mak[e] a 

reasonable effort to discover the defendant’s wishes.” Id. (quoting Flores-Ortega, 528 U.S. at 

478). However, counsel only has a constitutional duty to consult when “a rational defendant would 

want to appeal” or when “this particular defendant reasonably demonstrated to counsel that he was 

interested in appealing.” Id. (quoting Flores-Ortega, 528 U.S. at 480). In all cases, “courts must 

judge the reasonableness of counsel’s challenged conduct on the facts of the particular case, 

viewed as of the time of counsel’s conduct, and judicial scrutiny of counsel’s performance must 

be highly deferential.” Id. (quoting Flores-Ortega, 528 U.S. at 477) (internal quotation marks

omitted).
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We observed in Moody v. United States, 958 F.3d 485, 492 (6th Cir. 2020), that “defense 

lawyers need not (and in fact should not) raise every colorable argument they can find.” (citing

Davila v. Davis, 582 U.S. 521, 533 (2017) (“Effective appellate counsel should not raise every 

nonfrivolous argument[.]”); Wilson v. McMacken, 786 F.2d 216, 219 n.3 (6th Cir. 1986) (trial 

counsel need not make “every colorable objection”). This is because difficult decisions about 

which issues to pursue and which ones to cast aside lie at the heart of legal advocacy. A lawyer’s 

decision on such issues is deficient only when no reasonable attorney would have made the same 

call at the time. See Strickland, 466 U.S. at 690.

There is no debate that Komisar consulted with Haji-Mohamed about a potential appeal. 

Thus, the question before the court is not whether the duty to consult was triggered, but whether 

the consultation itself passes constitutional muster. Komisar’s declaration reflects discussions 

about appealing and the risk that an appeal could void the plea agreement. The government argues 

that Komisar provided competent, candid advice, despite failing to mention the Rule 11 error with 

Haji-Mohamed. The government also points out that raising the Rule 11 error on appeal would 

have carried risks similar to or the same as those attendant to the other issues Komisar did discuss 

with Haji-Mohamed. Still, Komisar’s declaration does not suggest that he discussed the Rule 11 

error and the advantages and disadvantages of pursuing an appeal on that issue with HajiMohamed, or that he discerned whether Haji-Mohamed wanted to appeal the issue. 

We presume prejudice in an ineffective-assistance claim if a defendant can establish a 

reasonable probability “that, but for counsel’s deficient performance, he would have appealed.” 

Flores-Ortega at 471, 484; see also Garza v. Idaho, — U.S. —, 139 S. Ct. 738, 742 (2019)

(prejudice is presumed when an attorney’s deficient performance causes a defendant to forgo an 

appeal that he otherwise would have pursued, even if he has signed an appeal waiver). This is 
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where Haji-Mohamed’s claim once again falters. Neither in the district court nor on appeal does 

Haji-Mohamed point to any evidence in the record suggesting that he would have pursued an 

appeal if counsel had advised him that the Rule 11 error provided a meritorious ground for doing 

so. Not even Haji-Mohamed’s self-serving declaration in support of his petition makes this claim.3

Moreover, he agreed with Komisar’s advice to forgo any appeal of the court’s denial of his motion 

to withdraw his guilty plea because he agreed that the risk of resurrecting the murder charge was 

too great. The same danger existed were he to successfully challenge his guilty plea. As such, we 

do not presume prejudice here and Haji-Mohamed has not otherwise met his burden to establish 

its existence. Therefore, he is not entitled to relief. 

Lack of Evidentiary Hearing. Haji-Mohamed resists this conclusion, arguing that at 

minimum, the district court was obligated to conduct a hearing on his claims. Section 2255 

requires “a hearing on such allegations unless the motion and the files and records of the case 

conclusively show that the prisoner is entitled to no relief.” Fontaine v. United States, 411 U.S. 

213, 215 (1973) (internal quotation marks omitted); Ray v. United States, 721 F.3d 758, 760–61 

(6th Cir. 2013). “Stated another way, the court is not required to hold an evidentiary hearing if the 

petitioner’s allegations cannot be accepted as true because they are contradicted by the record, 

inherently incredible, or [are] conclusions rather than statements of fact.” Amr v. United States,

280 F. App’x 480, 485 (6th Cir. 2008). The decision of whether to hold an evidentiary hearing is 

one committed to the sound discretion of the district court. Huff v. United States, 734 F.3d 600, 

3 Notably, the presentence report, which Haji-Mohamed reviewed before sentencing, correctly identified 

the mandatory minimum for the brandishing count as seven years. He did not question this fact. The parties 

do not address the extent to which this notice may have factored into the decision-making process; we 

highlight it here for further context.
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607 (6th Cir. 2013) (“A decision not to hold an evidentiary hearing on a motion for relief under 28 

U.S.C. § 2255 is reviewed for abuse of discretion.”). 

Here, the district court made a credibility finding that Haji-Mohamed’s claim that the stated 

mandatory minimum motivated his acceptance of the plea offer was not believable. For reasons 

previously discussed, we are loath to question this finding. While the district court’s credibility 

determination does not necessarily mean that Haji-Mohamed’s statement is “inherently 

unreliable,” coupling it with his declaration accompanying his petition demonstrates an internal 

inconsistency that contradicts the record. Specifically, as we noted earlier, Haji-Mohamed states 

in his declaration that he mainly agreed to plead guilty to avoid possible convictions for the Cricket 

store robbery and another 924(c) count—not because 35 years was the lowest statutory sentence. 

Irrespective of the evidence offered by the government, therefore, his own account of the foremost 

motivating factor for his guilty plea is untethered from the error that he claims justifies relief. 

Consequently, even with the relatively light burden placed on petitioners to justify a hearing, he 

has failed to carry it and the district court did not abuse its discretion in declining to hold a hearing 

for his claims.

Voluntariness of Guilty Plea. In addition to his ineffective-assistance-of-counsel claims, 

Haji-Mohamed also makes the independent argument that his guilty plea was constitutionally 

infirm because it was not voluntary and intelligent and thus violated due process. But HajiMohamed did not raise the claim that his plea was unintelligent and involuntary at or before 

sentencing. Nor, as we have discussed, did he file a direct appeal. Instead, he raised it for the first 

time in his § 2255 motion. Generally, when a defendant fails to raise an issue on direct appeal, 

other than ineffective assistance of counsel, that issue is waived and cannot be pursued on collateral 

review absent a showing of cause and prejudice. See Huff, 734 F.3d at 605–06. The hurdle for 
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such a double default is intentionally high in view of the federal interest in the finality of criminal 

convictions. See United States v. Frady, 456 U.S. 152 (1982). Indeed, “the concern with finality 

served by limitation on collateral attack has special force with respect to convictions based on 

guilty pleas.” United States v. Timmreck, 441 U.S. 780, 784 (1979). And the Court has not 

hesitated to apply this standard to cases involving claims of unintelligent and involuntary guilty 

pleas. See, e.g., Bousley v. United States, 523 U.S. 614, 622 (1998). 

The government may, however, forfeit its right to assert default as a defense by failing to 

raise it. See Elzy v. United States, 205 F.3d 882, 886 (6th Cir. 2000). The government has not 

asserted default in this case. And the district court did not consider its application. Even so, we 

may raise the issue sua sponte where appropriate. Id. We acknowledge that ineffective assistance 

of counsel can provide sufficient cause to excuse a petitioner’s failure to raise an issue in the 

district court or on direct appeal. See Murray v. Carrier, 477 U.S. 478, 488 (1986) (stating that 

procedural default resulting from ineffective assistance of counsel must be imputed to the state). 

Nevertheless, “the mere fact that counsel failed to recognize the factual or legal basis for a claim, 

or failed to raise the claim despite recognizing it, does not constitute cause for a procedural 

default.” Id. at 487. Thus, under the facts that Haji-Mohamed has alleged—that counsel missed 

the involuntary/unintelligent-plea issue in the district court and in considering grounds for 

appeal—he has not established sufficient cause to excuse the procedural default. 

Moreover, having failed to demonstrate prejudice sufficient to sustain his ineffectiveassistance-of-counsel claims, he necessarily cannot establish the actual prejudice required to 

overcome his procedural default. Under such circumstances, where we have thoroughly explored 

petitioner’s posited reason for failing to raise his involuntary/unintelligent-plea claim, we find that
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additional briefing is not necessary and sua sponte consideration is appropriate. We thus decline 

further review on the merits of this claim. 

IV.

Request for Remand. Finally, Haji-Mohamed argues that if this matter is remanded, a 

different district judge should be assigned. His request is motivated by the fact that the district 

court made an adverse credibility finding against him. We have accepted the district court’s 

credibility finding and otherwise found that Haji-Mohamed is not entitled to relief. Therefore, 

there will be no remand and his request is denied as moot.

V.

For the reasons set forth above, the decision of the district court is AFFIRMED.