2015 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-20-2015

USA v. Michael Nguyen

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Recommended Citation

"USA v. Michael Nguyen" (2015). 2015 Decisions. Paper 760.

http://digitalcommons.law.villanova.edu/thirdcircuit_2015/760
 NOT PRECEDENTIAL 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

_______________ 

No. 13-4769 

_______________ 

UNITED STATES OF AMERICA 

v. 

MICHAEL NGUYEN, a/k/a Turtle, 

a/k/a Mike, a/k/a M, 

 Appellant 

_______________ 

On Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Criminal No. 2-04-cr-00767-015) 

District Judge: Hon. Paul S. Diamond 

_______________ 

Argued June 8, 2015 

BEFORE: AMBRO and COWEN, Circuit Judges 

RESTANI,* Judge 

(Filed: July 20, 2015) 

 

* Honorable Jane A. Restani, Judge for the United States Court of International Trade, 

sitting by designation. 
2 

David E. Fritchey, Esq. 

Bernadette A. McKeon, Esq. (Argued) 

Robert A. Zauzmer, Esq. 

Office of United States Attorney 

615 Chestnut Street 

Suite 1250 

Philadelphia, PA 19106 

 Counsel for Appellee 

Cheryl J. Sturm, Esq. (Argued) 

387 Ring Road 

Chadds Ford, PA 19317 

 Counsel for Appellant 

_______________ 

OPINION** 

_______________ 

COWEN, Circuit Judge. 

 The petitioner-appellant, Michael Nguyen (“Petitioner”), has appealed the District 

Court’s order denying his petition for habeas corpus pursuant to 28 U.S.C. § 2255 

claiming ineffective assistance of counsel in connection with the plea bargaining process. 

Because we conclude that denial was appropriate, we will affirm. 

I. 

 Because we write solely for the parties, we will only set forth the facts necessary 

to inform our analysis. While investigating the Benjamin Ton Drug Trafficking 

_______________ 

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent. 
3 

Organization, individuals and documents identified Petitioner as a wholesale customer of 

the organization. In June of 2005, Petitioner was subpoenaed to testify before a grand 

jury in the Eastern District of Pennsylvania. He was appointed counsel for the limited 

purpose of representing him in connection with that appearance. On advice of counsel, 

Petitioner did not testify before the grand jury. 

 By the end of August of 2005, five of the six defendants charged in the original 

indictment had entered into cooperation agreements. The sixth defendant entered into a 

cooperation agreement in September 2005. On September 14, 2005, a superseding 

indictment was issued, adding numerous charges and twenty new defendants, including 

Petitioner. On September 29, 2005, at his initial appearance, Petitioner pled not guilty 

and requested the appointment of counsel. The court appointed John Griffin. 

 Between September 2005 and August 2006, 21 of the 26 co-defendants charged in 

the first superseding indictment pled guilty. The grand jury returned a second 

superseding indictment on August 23, 2006, adding one new defendant and consolidating 

the charges pending against the remaining five co-defendants, including Petitioner. 

During this time, Petitioner was represented by Griffin. 

 Petitioner’s Motion to Dismiss His Counsel 

 On September 8, 2006, Petitioner asked the District Court to terminate Griffin’s 

representation and appoint new counsel due to his attorney’s alleged failure to keep him 

adequately apprised of the status of his case. Petitioner alleged in his motion that 

September 29, 2005, the date of his arraignment, was the first and last occasion he “met, 
4 

spoke with or communicated in any form with Mr. Griffin.” (App. 312.) The District 

Court held a hearing on Petitioner’s motion to dismiss his counsel, at which Petitioner 

acknowledged that he had met with Griffin on the Monday before the hearing, but 

reiterated his frustration with his counsel and asserted that the visit was the first time the 

two had met since his arraignment. Griffin also testified, but chose not to specifically 

address Petitioner’s complaints. Rather, he simply noted that he had “just recently 

received discovery,” and that he had met with Petitioner to discuss it. (App. 318.) 

Griffin’s brief testimony indicated that when he had spoken to Petitioner a few days 

earlier, he believed they were ready to move forward, but that if Petitioner wanted new 

counsel, he would “respect whatever the position the Court wants to make on this.” (Id.) 

The District Court advised Petitioner that a change in counsel could delay his trial, but 

given Petitioner’s insistence on new counsel, the District Court granted the motion and 

subsequently appointed Steven Laver in December 2006 to represent him. Laver 

represented Petitioner through to completion of his trial. 

 Petitioner’s Trial and Conviction 

 Petitioner’s trial commenced in August 2007. He was ultimately convicted of 

conspiracy to distribute 100 kilograms or more of marijuana and convicted of possession 

with intent to distribute 50 pounds of marijuana, 100 pounds of marijuana, and 24 pounds 

of marijuana. On May 12, 2008, Petitioner was sentenced to a term of 262 months’ 

imprisonment consecutive to the undischarged term of imprisonment. We affirmed that 

conviction and sentence in an unpublished opinion. On October 16, 2010, Petitioner 
5 

filed a counseled motion pursuant to 28 U.S.C. § 2255 claiming ineffective assistance of 

counsel in connection with the plea bargaining process. 

 Petitioner’s § 2255 Motion 

 Petitioner’s motion raised several grounds of ineffective assistance, including that 

trial counsel failed to “provide reasonably accurate advice concerning all aspects of the 

case,” including a candid estimate of the probable outcome, the probable outcome of 

alternative choices, the maximum and minimum sentences that could be imposed, and 

what sentence was likely. (App. 72.) Although the initial motion did not clearly 

distinguish between Griffin and Laver, Petitioner has not appealed any of his claims 

against Laver and those claims are not before us. 

 The District Court held an evidentiary hearing on Petitioner’s motion. In addition 

to Petitioner’s counsel who had been appointed in connection with his grand jury 

appearance, Petitioner, Griffin, and Assistant United States Attorney David Fritchey all 

testified. 

 The District Court’s Denial of the § 2255 Motion 

 In considering the habeas petition, the District Court “largely discredit[ed] the 

testimony of [Petitioner],” and credited the testimony of Griffin and Fritchey. (App. 5.) 

Under the circumstances presented, the Court concluded that Petitioner had not been 

constructively denied counsel during a critical stage of his proceedings, refused to apply 

the standard in United States v. Cronic, 466 U.S. 648 (1984), and instead analyzed 

Petitioner’s claims under the standard in Strickland v. Washington, 466 U.S. 668 (1984). 
6 

Finding that Petitioner could not meet the latter standard, the District Court denied the 

petition and declined to issue a certificate of appealability (“COA”). Petitioner appealed, 

and we granted Petitioner a COA only as to his claim that he was constructively denied 

the right to be represented by effective counsel during a time when plea negotiations 

could have taken place. 

II. 

Petitioner asserts that Griffin abandoned him during a critical stage of his 

proceedings and that his case is therefore governed by the standard in Cronic. We 

decline to apply Cronic and instead apply the standard announced in Strickland. 

 Application of the Cronic Standard 

 In United States v. Cronic, counsel representing the defendant was given only 25 

days to prepare for trial even though the Government had taken four and a half years to 

investigate and had reviewed thousands of documents. The defendant was convicted and 

the Sixth Circuit reversed, inferring that the defendant’s Sixth Amendment right had been 

violated. Cronic, 466 U.S. at 649-52. The Supreme Court disagreed that the inference 

was warranted in that case, but identified three circumstances where reversal of a 

conviction under the Sixth Amendment is required “without inquiring into counsel’s 

actual performance or requiring the defendant to show the effect it had on the trial.” Bell 

v. Cone, 535 U.S. 685, 695 (2002). 

 As the Supreme Court reiterated in Bell v. Cone, the three circumstances are as 

follows: (1) circumstances involving the complete denial of counsel at a critical stage in 
7 

the proceedings, (2) where “counsel entirely fails to subject the prosecution’s case to 

meaningful adversarial testing,” and (3) where counsel is called upon to render assistance 

under circumstances where competent counsel very likely could not. Id. at 695-96. 

Here, Petitioner argues that he was effectively denied counsel at a critical stage in his 

proceedings. 

 As an initial matter, we conclude that the District Court’s findings regarding the 

adequacy of Griffin’s representation were not clearly erroneous. The District Court 

credited Griffin’s testimony, discredited Petitioner’s, and we discern nothing in the 

record that would warrant us substituting our own judgment for either credibility 

determination. See Ross v. Varano, 712 F.3d 784, 796 (3d Cir. 2013) (“applying the 

clear error standard of review . . . an appellate court ordinarily accepts a district court’s 

credibility determinations.” ). Moreover, the District Court found as follows: (1) that 

Griffin had several discussions with Petitioner early in the representation about pleading 

guilty, (2) that Petitioner had made it clear to Griffin that he was not interested in 

entering into any kind of plea agreement or negotiations, (3) that Griffin was certain that 

Petitioner wanted to go to trial and recalled his refusal to plead guilty, and (4) that, at the 

time Griffin ended his representation, he had never received any indication that Petitioner 

wanted to do anything other than go to trial. These factual findings are each supported 

by the record and Griffin’s specific testimony. 

 Because Griffin’s credited testimony establishes that he discussed with Petitioner 

the possibility of pleading, the advantages that accompany it, and met with him to discuss 
8 

the Government’s discovery when he received it, Petitioner has not demonstrated 

abandonment such that are we are persuaded to apply Cronic. The cases relied on by 

Petitioner do not convince us otherwise. 

 In Appel v Horn, 250 F.3d 203, 214 (3d Cir. 2001), we applied Cronic to a claim 

of constructive denial of counsel to a state court defendant at his competency hearing. 

But in Appel, despite the fact that the petitioner’s counsel had been assigned to represent 

him by the Public Defender, the petitioner had informed them that he wished to represent 

himself and did not want them to represent him. Indeed, even after the state trial court 

denied the petitioner’s waiver of counsel, the petitioner’s assigned counsel continued to 

refuse to act as defendant’s counsel. The District Court, on habeas review, concluded 

that despite their obligation to act as counsel at the petitioner’s competency hearing, the 

record was undisputed that they had failed to do so. Id. at 215. We agreed. “In short, 

attorneys Kraft and Crowe, because they did not believe they were counsel, never 

conducted any investigation; did not provide Dr. Schwartz or the court with any

information about [the petitioner]; and did not attempt to litigate the competency 

determination in any way.” Id. (all emphases in original). Accordingly, we concluded 

that there was “ample support for the District Court’s conclusion that Kraft and Crowe 

abandoned their duty to both the court and their client when they decided not to conduct 

any investigation on [the petitioner’s] competency.” Id. (internal quotation marks and 

citation omitted). In contrast, no such complete abandonment occurred here. 

 Nor is Petitioner aided by the Sixth Circuit’s decision in Mitchell v. Mason, 325 
9 

F.3d 732, 742 (6th Cir. 2003). In Mitchell, the petitioner complained that he had not 

seen or talked to his lawyer in the five months leading up to trial, and that his counsel 

was suspended for the month immediately preceding trial. Id. at 742. The trial judge 

postponed a decision on the petitioner’s motion until a time when his counsel could 

appear. Then, on the second day of jury selection, the court revisited the issue of the 

petitioner’s request for new counsel. Id. at 735-36. At that time, the petitioner’s counsel 

testified at length, but did not dispute the substance of the petitioner’s assertions. The 

court concluded that Cronic applied and that the petitioner had been completely denied 

counsel at a critical stage. Id. at 744. 

Mitchell is easily distinguished from this case. First and foremost, in Mitchell, 

because his attorney was suspended for the 30 days before his trial, the petitioner was 

actually completely denied counsel for a period of time prior to his trial. Although the 

Sixth Circuit noted that this fact “does not decide this case” such that an attorney’s 

suspension would lead to an automatic application of Cronic, “it does contribute to the 

weight of the evidence that demonstrates that there was no consultation between [the 

petitioner] and his attorney prior to trial.” Id. at 747. There obviously was no such 

period of actual non-representation in this case. 

 Second, in Mitchell, the petitioner indicated that following his bail hearing, his 

attorney had not visited him once in prison and that he had not had the opportunity to 

speak to him in court until his lawyer next represented him at the final conference four 

months later. Id. at 735. Here, although Petitioner arguably did not speak to his attorney 
10 

for a longer period of time, Petitioner’s case, which was designated complex, appears to 

have been advancing more slowly. It is not the case that Petitioner saw Griffin at his bail 

hearing and then did not see or hear from him again until the final pre-trial conference. 

Rather, Griffin, upon receiving discovery from the Government, met with Petitioner to 

review it and to again discuss the status of his case. 

 On the factual record before us, and in light of the District Court’s decision to 

credit Griffin’s testimony over Petitioner’s, Petitioner has not demonstrated that he was 

constructively denied counsel during the pre-trial period. As we conclude that Cronic 

does not apply, we turn to an analysis of Petitioner’s claims under the Strickland

standard. 

 Application of the Strickland Standard 

Strickland requires Petitioner to show the following: (1) that his attorney’s 

representation was unreasonable under “prevailing professional norms,” and (2) that but 

for the deficiency in representation, there was a reasonable probability that the “result of 

the proceeding would have been different.” Strickland, 466 U.S. at 688, 694. Petitioner 

cannot meet this standard. 

 Petitioner cannot establish that he suffered any prejudice as a result of Griffin’s 

alleged ineffectiveness. Because Griffin was replaced by Laver, against whom Petitioner 

has chosen not to appeal his claim of ineffective assistance, his claim is limited to the 

argument that he was denied an opportunity to plead or cooperate during the time Griffin 

represented him as a result of Griffin’s ineffective assistance. But to establish prejudice, 
11 

Petitioner must begin by proving that a plea agreement was formally offered by the 

Government. See Kingsberry v. United States, 202 F.3d 1030, 1032 (8th Cir. 2000) 

(holding, in the context of an ineffective assistance of counsel claim, that to establish 

prejudice, the petitioner must begin by proving that a plea agreement was formally 

offered by the Government). 

 Here, however, it is undisputed that while Fritchey testified he spoke to Griffin 

several times, the Government never made any formal offer. Moreover, even if Petitioner 

could demonstrate that the Government offered a plea bargain or a cooperation 

agreement – which of course he cannot – there is insufficient evidence that Petitioner 

would have taken it. Griffin testified, credibly according to the District Court, that 

Petitioner was resolute in his opposition to accepting any kind of offer. And Fritchey 

testified that Laver informed him that Petitioner “thought he had a defensible case, and he 

wanted to go to trial.” (App. 278.) On this record, Petitioner’s speculation that had he 

known the potential prison sentence he faced, he would have accepted a guilty plea or 

cooperation deal – offers that were never made and therefore never his to accept – is 

simply insufficient to establish prejudice under Strickland. 

III. 

In light of the foregoing, the order of the District Court entered on November 5, 

2013, will be affirmed.