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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 habe as corpus pursuant to 28 U.S.C. § 2255 claiming ineffective assistance of counsel in c onnection 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 investig ating 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, Petitione r was subpoenaed to testify before a grand jury in the Eastern District of Pennsylvani a. 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 th e six defendants charged in the original indictment had entered into cooperation agreem ents. The sixth defendant entered into a cooperation agreement in September 2005. On September 14, 2005, a superseding indictment was issued, adding numerous char ges and twenty new defendants, including Petitioner. On September 29, 2005, at his in itial 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 gu ilty. The grand jury returned a second superseding indictment on A ugust 23, 2006, adding one new de fendant and consolidating the charges pending against the remaining five co-defendants, including Petitioner. During this time, Petitioner was re presented 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 c ounsel 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 arraignmen t, 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 Griffi n on the Monday before the hearing, but reiterated his frustration with his counsel and a sserted that the visit was the first time the two had met since his arraignment. Griffin al so 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 w ith Petitioner to discuss it. (App. 318.) Griffin’s brief testimony indicated that wh en 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 pos ition the Court wants to make on this.” ( Id. ) The District Court advised Petitioner that a ch ange 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 mo re of marijuana and convicted of possession with intent to distribute 50 pounds of mar ijuana, 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 te rm of imprisonment. We affirmed that conviction and sentence in an unpublished opinion. On October 16, 2010, Petitioner5 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 ac curate advice concerning all aspects of the case,” including a candid estimate of the pr obable outcome, the probable outcome of alternative choices, the maximum and minimu m sentences that could be imposed, and what sentence was likely. (App. 72.) Although the initial motion did not clearly distinguish between Griffin and Laver, Petiti oner 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 appoint ed 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 tes timony of Griffin and Fritchey. (App. 5.) Under the circumstances presented, the C ourt 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 latte r 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 hi s 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 abandone d him during a critical stage of his proceedings and that his case is th erefore 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 Gove rnment 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 Ame ndment 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 re quired “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 in7 the proceedings, (2) where “counsel entirely fa ils to subject the prosecution’s case to meaningful adversarial testing,” and (3) wh ere 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 th e 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 substituti ng 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 appella te court ordinarily accepts a district court’s credibility determinations.” ). Moreover, the District Court found as follows: (1) that Griffin had several discussions with Petitione r 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 ne gotiations, (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 represen tation, 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 estab lishes that he discussed with Petitioner the possibility of pleading, the advantages th at accompany it, and met with him to discuss8 the Government’s discovery when he rece ived 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 info rmed them that he wished to represent himself and did not want them to represent hi m. Indeed, even after the state trial court denied the petitioner’s waiver of counsel, th e petitioner’s assigned counsel continued to refuse to act as defendant’s counsel. The District Court, on habe as 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 di d not attempt to litig ate the competency determination in any way.” Id. (all emphases in original). Accordingly, we concluded that there was “ample support for the DistrictCourt’s conclusion that Kraft and Crowe abandoned their duty to both the court and thei r 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 , 3259 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 m onths 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 moti on until a time when his counsel could appear. Then, on the second day of jury sele ction, 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 susp ended for the 30 days before his trial, the petitioner was actually completely denied counsel for a peri od 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 attorney10 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 hi m again until the final pre-trial conference. Rather, Griffin, upon receiving discovery fro m 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, Petiti oner 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 anal ysis of Petitioner’s claims under the Strickland standard. Application of the Strickland Standard Strickland requires Petitioner to show the fo llowing: (1) that his attorney’s representation was unreasonable under “prevaili ng professional norms,” and (2) that but for the deficiency in representation, there wa s 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 suffere d 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 ineff ective 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 ineffe ctive 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 assi stance of counsel claim, that to establish prejudice, the petitioner must begin by provi ng 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 a ny formal offer. Moreover, even if Petitioner could demonstrate that the Government offered a plea bargain or a cooperation agreement – which of course he cannot – th ere is insufficient ev idence that Petitioner would have taken it. Griffin testified, cred ibly 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 Petiti oner “thought he had a defe nsible 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 ma de and therefore never his to accept – is simply insufficient to establish prejudice under Strickland

. III. In light of the foregoing, the order of th e District Court entered on November 5, 2013, will be affirmed.