*

The Honorable Dan Aaron Polster, United States District Judge for

the Northern District of Ohio, sitting by designation.

1

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

ELECTRONIC CITATION: 2004 FED App. 0105A (6th Cir.)

File Name: 04a0105a.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

SILAS T. MCADOO,

Petitioner-Appellant,

v.

FRANK ELO, Warden

Respondent-Appellee.

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No. 01-2050

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 98-74705—Paul D. Borman, District Judge.

Argued: February 5, 2003

Decided and Filed: April 15, 2004 

Before: GILMAN and GIBBONS, Circuit Judges;

POLSTER, District Judge.*

_________________

COUNSEL

ARGUED: James R. Gerometta, FEDERAL PUBLIC

DEFENDERS OFFICE, Detroit, Michigan, for Appellant.

2 McAdoo v. Elo No. 01-2050

Debra M. Gagliardi, OFFICE OF THE ATTORNEY

GENERAL, CORRECTIONS DIVISION, Lansing,

Michigan, Appellee. ON BRIEF: James R. Gerometta,

Penny R. Beardslee, FEDERAL PUBLIC DEFENDERS

OFFICE, Detroit, Michigan, for Appellant. Debra M.

Gagliardi, OFFICE OF THE ATTORNEY GENERAL,

CORRECTIONS DIVISION, Lansing, Michigan, Appellee.

_____________________

AMENDED OPINION

_____________________

JULIA SMITH GIBBONS, Circuit Judge. Silas McAdoo

appeals the district court’s denial of his petition for a writ of

habeas corpus. McAdoo pled guilty in Michigan state court

to one count of second-degree murder and two counts of

assault with intent to commit murder. Pursuant to a plea

agreement, he was sentenced to three life sentences to run

concurrently. McAdoo later claimed that his attorney

misinformed him about the consequences of a life sentence.

McAdoo raises three issues in this appeal, arguing that (1) his

guilty plea was not knowing and voluntary because he

misunderstood its consequences, (2) his plea was illusory

based on the effective unavailability of parole for those

serving a statutory life sentence, and (3) his trial counsel was

ineffective for allegedly misinforming McAdoo about his

possible sentence. For the following reasons, we affirm the

district court’s denial of habeas relief.

I.

McAdoo was charged in Michigan state court with one

count of first-degree murder and two counts of assault with

intent to commit murder. The charges arose from the

stabbing death of McAdoo’s wife, Alicia Kelley, and the

stabbing of two of his daughters. At McAdoo’s preliminary

hearing, his ten and fourteen year old daughters testified
No. 01-2050 McAdoo v. Elo 3

about the facts of McAdoo’s offenses, all of which occurred

in the family home. 

 On January 9, 1995, the trial date, McAdoo entered a

guilty plea to the lesser offense of second-degree murder and

two counts of assault with intent to commit murder. The

agreement was in exchange for the dismissal of the firstdegree murder charge that carried a maximum sentence of life

without parole. At the plea proceeding, McAdoo’s attorney

told the court that the plea agreement indicated three life

sentences. McAdoo signed the plea form, which stated that

the agreement was for three life sentences. McAdoo stated to

the court under oath that no one had promised him anything

other than what the plea form indicated. 

Sentencing was held on February 1, 1995. At the outset,

McAdoo’s attorney stated that McAdoo did not want to

withdraw his plea, and McAdoo agreed on the record. The

court stated that it was ready to “impose a sentence in accord

with the sentence agreement.” It then sentenced McAdoo to

parolable life for the murder conviction and two concurrent

terms of twenty years imprisonment for the assault

convictions. The sentencing judge stated, “Count one and

murder two for a term of statutory life which is 20 years.”

Although the judge indicated an intent to sentence McAdoo

in accord with the plea agreement, she failed to do so. First,

a statutory life term does not equal twenty years in Michigan.

Second, the plea agreement did not call for twenty-year

sentences for the assault convictions. 

The prosecution then moved to amend the sentence to

conform to the plea agreement, which had provided for three

concurrent life sentences rather than one life sentence and two

twenty-year sentences. Resentencing occurred on March 24,

1995. McAdoo, then represented by his second counsel,

Robert Plumpe, requested the withdrawal of his guilty plea,

claiming that he did not understand the nature of his plea

agreement and that he was under the influence of medication

at the time he entered his plea. Defense counsel argued that

4 McAdoo v. Elo No. 01-2050

there was confusion when McAdoo entered his plea about

what the sentence would be. The prosecutor responded that

there was some confusion at sentencing, “but not at plea

time.” 

At the resentencing hearing, McAdoo, who was not under

oath, had the following exchange with the state trial court:

THE COURT: Mr. McAdoo, sir, do you wish to say

anything before this Court imposes the correct sentence,

which was pursuant to the plea agreement?

DEFENDANT McADOO: Yes, Judge Braxton. The

day that you accepted my plea, I don’t know if you

remember. I know you have a lot of cases that you have

to do, but when Batchelor first came before you with me,

and you asked me more than once did I understand, and

you asked me how did I plead, and I pled not guilty.

Then he took me, and we went into the back chambers

or in another room, and he made the statement to me, and

maybe I am wrong, but I was told that the three life

sentences would be 20, 20, 20 to run concurrently, and

that my kids would not have to be subjected to the Court.

THE COURT: But he did inform you that they were

three life sentences. Is that correct?

DEFENDANT McADOO: Yes, Ma’am.

THE COURT: Which is indicated on this form.

MR. DEFENDANT: But he, I guess what I am trying

to say is, Judge Braxton, that if I had understood what he

was telling me which, as I stated to you before, I had no

knowledge of what was going on whatsoever. I have no

–

THE COURT: Now you had some knowledge because

I spoke to you. But you go ahead.
No. 01-2050 McAdoo v. Elo 5

1

On May 4, 1995, the court conducted a hearing on that issue. Dr.

Keith Dlugokinski, a psychologist from the prison where McAdoo was

incarcerated, testified that McAdoo was suffering from major depression

and was being medicated at the time he entered his plea. However,

Dlugokinski also testified that McAdoo’s medications would not have

significantly impaired his cognitive abilities. Although no order denying

the motion to withdraw the plea appears in the record, it is evident that the

court denied the motion. The issue of McAdoo’s psychological state and

medications has not been raised in this appeal.

DEFENDANT McADOO: What I am trying to say is

my lawyer, Batchelor, he never spoke with me about

anything. It was just the first time I ever saw this piece

of paper here was the day that you took my plea

agreement. When I first saw you, and it was more or less

stated to me accept it or get another attorney. I wrote all

this up, and I turned it in to the Grievance Commission.

But anyway to sum it all up, he told me something that

was different than what you did, and that’s the only thing

I am arguing, and is the fact that I didn’t understand what

he was doing. If I would have understood that he was

sentencing me to three life sentences to the point, why

not fight the case?

I didn’t want my kids to be subjected to it. It was

enough that they went through. And then for him to tell

me that it would be the three life sentences, I know I

need to be punished for what I did. No problem

whatsoever with that. But that’s not what he explained

to me. That’s all I am trying to say to the Court.

The court then conformed the sentence to the written plea

agreement and stated that it would consider McAdoo’s

motion to withdraw the plea if he presented evidence that his

mental state and medication prevented him from knowingly

entering a guilty plea.1

6 McAdoo v. Elo No. 01-2050

2

The “Lifer Law,” M.C.L. § 791.233b; M.S.A. § 28.303(3), provides

that prisoners convicted of an enumerated offense (such as second-degree

murder) are not eligible for parole until the prisoner has served the

minimum term less available disciplinary credits. People v. Lino, 539

N.W.2d 545, 549 (Mich. Ct. App. 1995), overruled on other grounds by

People v. Carson, 560 N.W.2d 657, 665 (Mich. Ct. App. 1996). In

McAdoo’s case, the “Lifer Law” would have meant that he was likely to

be eligible for parole after serving approximately fifteen years. Lino, 539

N.W.2d at 548-49 (defendant serving parolable life sentence for crime

committed on or after October 1, 1992, is subject to the jurisdiction of the

parole board and eligible for parole after fifteen years imprisonment).

McAdoo was then appointed a third counsel, Edward

Jabbour, who filed another motion to withdraw McAdoo’s

guilty plea, arguing that the plea was not knowing and

voluntary. The sentencing court held a hearing on this motion

on March 7, 1996. Jabbour argued that McAdoo entered his

plea believing that he would be released after twenty years

imprisonment and that this alleged misunderstanding nullified

the plea. 

The court conducted an evidentiary hearing on May 9,

1996, to determine whether McAdoo’s alleged

misunderstanding nullified his plea. At the May 9, 1996,

hearing, Batchelor testified that his understanding was that

the penalty for first-degree murder in Michigan was a

sentence of “natural life” and the penalty for second-degree

murder was a sentence of “parolable” life. He testified that he

was familiar with the “Lifer Law,”2 which would have

governed McAdoo’s possibility of parole. When asked what

his understanding of the “Lifer Law” was, Batchelor stated,

“in terms of what I remember in discussion with Mr. McAdoo

with regards to the Lifer Law, we never discussed it.” When

asked whether he had said anything to McAdoo about what a

sentence of life imprisonment means, Batchelor responded, “I

don’t recall saying anything to him about life imprisonment.”

McAdoo presented the testimony of Michael Patrick

Martin, prisoner advocate for the Wayne County jail at the

time of McAdoo’s incarceration there, and Mark Carrico of
No. 01-2050 McAdoo v. Elo 7

3McAdoo later stated in an affidavit filed in the district court that

Batchelor had told him that a “life sentence” in M ichigan was the

equivalent of a twenty-year sentence and that he would be paroled in

approximately seventeen-and-a-half years. Because this affidavit was not

part of the record before the state court, we do not consider it in assessing

whether the state court’s decision to deny McAdoo’s motion to withdraw

his plea was objectively unreasonable. 

the Team for Justice, who visited McAdoo after his

incarceration. Jabbour asked Martin if McAdoo told him

about the sentence agreement contained in the plea

agreement. The prosecution objected to this evidence as

hearsay. Jabbour argued that the evidence was “state of

mind” testimony, but the court sustained the objection.

Jabbour attempted to elicit the same information from Carrico

that he had from Martin. Carrico stated that, at some

unspecified time before McAdoo was transferred to a state

prison to serve his sentence, McAdoo told Carrico he would

“get out in 17 years.” Jabbour then asked the court to rule

that if McAdoo testified, he could not be questioned about the

underlying facts of the offense. The court ruled that McAdoo

could be questioned about any facts that were relevant to the

motion to withdraw the plea. McAdoo did not testify.

3

 

At the close of the hearing, the court denied McAdoo’s

motion to withdraw his guilty plea, concluding:

If I look at the testimony and my view of the witnesses

that testified this afternoon, he stated – Mr. Carrico stated

he met the defendant back in 1994, and that the

defendant’s mother called him because he’s a member of

the Team for Justice. He further testified that he visited

weekly with the defendant before he was sent to Jackson

[prison], and Mr. Carrico also testified he was at the

sentencing. Mr. Carrico further testified that defendant

told him he would be eligible for parole in 17 years.

That’[s] what your witness means to the understanding

the defendant had at that time. 

8 McAdoo v. Elo No. 01-2050

Upon questioning Mr. Batchelor, he indicated there was,

in fact, a plea bargain that was made on the day of trial.

He testified further that he, being Mr. Batchelor, was of

the opinion that the plea offered the defendant would

give him a better opportunity to put his client in the best

possibl[e] posture that he could be in, and he made it

know[n] to his client what his options were at the time

. . .

This Court, after listening to the witnesses and the

testimony that was presented in terms of the defendant's

state of mind, the defendant stated it was his

understanding he would be parolable in 17 years which,

in fact, is the truth. And this Court, when taking a plea

from any defendant as best as I can recall, I’m very

meticulous in terms of whether or not the defendant has

an understanding of what it is he's doing. Of course, I

cannot and I do not go behind the scene to ask questions

as to w[he]ther or not--what the defendant's particular

understanding is of what a certain word means to a

particular defendant. That I do not do. So, based upon

the testimony I've heard, I deny the defendant’s motion.

Following denial of his second motion to withdraw his

guilty plea, McAdoo filed a delayed application for leave to

appeal to the Michigan Court of Appeals. This application

was denied for lack of merit in the grounds presented.

McAdoo then filed a delayed application for leave to appeal

to the Michigan Supreme Court, which was denied. 

McAdoo then filed a petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254. On June 18, 2001, the district

court entered an order denying the petition for habeas corpus.

McAdoo was granted a certificate of appealability with

respect to his claims that his plea was involuntary, that his
No. 01-2050 McAdoo v. Elo 9

4

A certificate of appealability was denied on McAdoo’s claim that his

attorney was ineffective for failing to pursue a diminished capacity

defense.

plea was illusory, and that his defense counsel was ineffective

in advising him about the consequences of his plea.4 

II.

The Antiterrorism and Effective Death Penalty Act

(“AEDPA”) governs this case. Under 28 U.S.C. § 2254(d),

a federal court may not grant habeas relief unless the

adjudication in the state court proceedings:

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an

unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.

Under AEDPA, “[a] federal habeas court may not issue the

writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly.” Williams

v. Taylor, 529 U.S. 362, 411 (2000). Rather, the issue is

whether the state court’s application of clearly established

federal law was “objectively unreasonable.” Id. at 409.

A federal court is to apply a presumption of correctness to

state court findings of fact for habeas corpus purposes unless

clear and convincing evidence is offered to rebut this

presumption. 28 U.S.C. § 2254(e)(1); Warren v. Smith, 161

F.3d 358, 360-61 (6th Cir. 1998). The appeals court gives

complete deference to the federal district court’s and state

court’s findings of fact supported by the evidence. Clemmons

v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994). Trial court

10 McAdoo v. Elo No. 01-2050

errors in state procedure and/or evidentiary law do not rise to

the level of federal constitutional claims warranting relief in

a habeas action unless the error renders the proceeding so

fundamentally unfair as to deprive the petitioner of due

process under the Fourteenth Amendment. Estelle v.

McGuire, 502 U.S. 62, 69-70 (1991). 

III.

A.

We apply the standards of AEDPA to McAdoo’s three

claims. His first contention is that his guilty plea was not

knowing and voluntary because he was misinformed by his

attorney about the consequences of his plea. Although

McAdoo acknowledges that he was aware that he was

receiving a life sentence, he argues that he misunderstood the

implications of a life sentence because of erroneous

statements made to him by his lawyer and that the state court

finding otherwise was objectively unreasonable. 

The Supreme Court has held that a defendant must have

“sufficient awareness of the relevant circumstances and likely

consequences” of his plea. Brady v. United States, 397 U.S.

742, 748 (1970). A guilty plea must be accompanied by “an

affirmative showing that it was intelligent and voluntary.”

Boykin v. Alabama, 395 U.S. 238, 242 (1969). Such a

showing is generally made by the government’s production of

a transcript of state court proceedings to establish that the plea

was made voluntarily. Garcia v. Johnson, 991 F.2d 324, 326

(6th Cir. 1993). 

Prior to entering his plea, McAdoo signed the Pretrial

Settlement and Notice of Acceptance, which indicated that the

sentence for each of the three offenses would be life

imprisonment. When entering the plea, McAdoo stated under

oath that he understood the terms of the plea agreement and

that he knowingly and voluntarily entered into the agreement.

McAdoo also testified that no additional promises, other than
No. 01-2050 McAdoo v. Elo 11

5McAdoo also attempts to show confusion about the consequences

of a parolable life sentence by submitting evidence that the State Bar of

Michigan addressed the issue of the consequences of a life sentence at an

annual meeting in September 2000, some five and a half years after

McAdoo entered his guilty plea and some four and a half years after his

state evidentiary hearing. Evidence about this meeting obviously was not

a part of the record considered by the state court. In any event, statements

at the annual meeting tend to show that there was confusion about the

likelihood of parole for prisoners sentenced to parolable life, but they do

not indicate that it was reasonable to believe that a life sentence in

Michigan meant anything other than what its name implies.

those contained in the plea agreement, had been made to him.

Shortly before McAdoo entered his plea, his attorney stated

to the court that the plea agreement called for three life

sentences and that he had discussed the agreement with

McAdoo. The attorney also stated that he had explained

McAdoo’s constitutional rights to him and McAdoo had

indicated his understanding. 

McAdoo does not contend that the plea colloquy was

inadequate. He acknowledges that he knew he was agreeing

to a life sentence. His argument is rather that there was

confusion about the consequences of a parolable life sentence

in Michigan at the time and that he relied on the alleged outof-court statements of his attorney. In further support of the

existence of confusion, he cites the statement of the judge at

sentencing that he would receive “a term of statutory life

which is 20 years” and the attorneys’ silence after that

statement.5

McAdoo contends that his case is analogous to Hart v.

Marion Correctional Institution, 927 F.2d 256 (6th Cir.

1991). In Hart, the state trial judge and Hart’s attorneys

incorrectly informed him that his maximum period of

incarceration would be fifteen years if he pled guilty. The

maximum was actually seventy-five years. This court stated:

This record shows that the court informed Hart he could

be sentenced from 60 to 150 years. The court

12 McAdoo v. Elo No. 01-2050

immediately qualified that information by adding that the

maximum period he could serve for the sentence would

be 15 years. Nowhere does the record show that Hart was

informed before entering his plea of the true sentence, a

minimum of 30 years and a maximum of 75. He was

informed by the court of this range at his sentencing

hearing, but again at the hearing, the court stated that

under Ohio law he would only serve 15 years of the

sentence. . . . Although this statement occurred after Hart

entered his plea, it is evidence that the trial judge himself

did not understand the consequences of the plea

agreement and, accordingly, did not give Hart correct

information on the consequences of his plea.

Id. at 258. This case differs from Hart in that McAdoo was

aware he was receiving a life sentence. Unlike the court in

Hart, the state court in this case made its sole misstatement at

the sentencing, only after the plea had been entered and

accepted. Any misstatement by the judge at sentencing could

not possibly have affected McAdoo’s understanding at the

time he entered his plea, the relevant time for our inquiry.

After an evidentiary hearing about whether McAdoo’s plea

was entered knowingly, the state court found that his alleged

misunderstanding did not invalidate the plea. The state court

accepted as true McAdoo’s evidence (in the form of Carrico’s

testimony) that he believed he would be paroled in seventeen

years. This evidence, however, does not show that his plea

was unknowingly entered, as the state court correctly found.

See Hill v. Lockhart, 474 U.S. 52, 56 (1985) (“We have never

held that the United States Constitution requires the State to

furnish a defendant with information about parole eligibility

in order for the defendant’s plea of guilty to be voluntary.”);

James v. Cain, 56 F.3d 662, 666 (5th Cir. 1995) (“The United

States Constitution does not require the State to furnish a
No. 01-2050 McAdoo v. Elo 13

6

As a practical matter, any information given to a defendant about

parole at the time he pleads guilty is inherently imprecise. Both parole

eligibility and likelihood are unpredictable. A number of factors, such as

the earning of sentence credits, may affect the time at which a prisoner

becomes eligible for parole. Furthermore, factors such as the crimes of

conviction, the entire criminal record, and behavior in prison may impact

the likelihood of parole at a particular time after a prisoner becomes

eligible for parole. The likelihood of parole is also affected by changes

in the law and in the composition and attitudes of parole board members.

See James, 56 F.3d at 666 (noting that changes in Louisiana’s

commutation procedures made parole more difficult to attain). As

McAdoo’s evidence of the 2000 Michigan bar meeting suggests, the fact

that few Michigan prisoners sentenced to parolable life are paroled when

they are first eligible is attributable to a “political shift.” An assessment

of the likelihood that McAdoo will be paroled when he becomes eligible

in 2010 would have been speculative in 1995 when he pled guilty and is

speculative today, because there is no means of ascertaining future parole

board policy or other relevant factors. 

7McAdoo does not claim that these evidentiary rulings made the

proceedings so fundamentally unfair as to deprive him of due process.

8McAdoo’s description of the state court ruling is not precisely

accurate. While certainly the state court left open the possibility of such

cross-examination, it did so only to the extent an underlying fact might be

relevant to the motion to withdraw the plea.

defendant with information about parole eligibility in order

for the defendant’s plea of guilty to be voluntary.”).6

McAdoo’s argument that at the time of his guilty plea there

was confusion in Michigan about the consequences of a

parolable life sentence is intertwined with an argument that

the state court made erroneous evidentiary rulings at the

hearing on his request to withdraw his plea.7 First, McAdoo

contends that the state court erroneously excluded Martin’s

“state of mind” testimony. Second, he contends that the state

court’s incorrect ruling that, if McAdoo testified, he could be

cross-examined about the underlying facts of the case forced

him to elect not to testify.

8

 Whatever the merit of these

evidentiary arguments, the state court’s evidentiary rulings

14 McAdoo v. Elo No. 01-2050

did not affect the outcome of the state hearing. The state

court heard testimony from Carrico that McAdoo believed

that he would be eligible for parole in seventeen and a half

years. It accepted that testimony as truthful and also

determined that McAdoo’s belief was consistent with his

actual date of parole eligibility under Michigan law.

McAdoo attempts to characterize his misunderstanding

about the consequences of his sentence of parolable life as a

misunderstanding about more than his parole eligibility date

or the likelihood of parole. He argues that he in fact thought

a life sentence meant a twenty-year sentence. Although

McAdoo presented no evidence of this belief to the state

court, at resentencing (in an unsworn statement during his

allocution), he told the state court that Batchelor told him that

“the three life sentences would be 20, 20, 20 to run

concurrently.”

In Ramos v. Rogers, 170 F.3d 560 (6th Cir. 1999), the

defendant attempted to withdraw his guilty plea after

sentencing. While accepting his plea, the state trial court

asked Ramos whether he understood that he was not going to

receive probation under any circumstances. Id. at 562.

Ramos responded that he understood. Later, he attempted to

withdraw his guilty plea, arguing that his lawyer had actually

promised him that he would receive “supershock probation.”

Id. at 562-63. On appeal, Ramos contended that he was told

only that he was ineligible for probation but not that he was

ineligible for supershock probation. Id. at 563. He testified

that he did not know the difference between supershock

probation and “regular” probation. Id. The court was not

persuaded by the argument that the individual defendant’s

misunderstanding of a commonly used term rendered his plea

void. It held that “such word games cannot be permitted to

vitiate the use of simple words in court.” Id. at 565 n.6.

Ramos essentially asked the court to rely on his subjective

impression of the words used, garnered from his lawyer’s

misstatements, rather than the plain meaning of the statements

made in court. This court declined to do so:
No. 01-2050 McAdoo v. Elo 15

If we were to rely on Ramos’s alleged subjective

impression rather than the record, we would be rendering

the plea colloquy process meaningless, for any convict

who alleges that he believed the plea bargain was

different from that outlined in the record could withdraw

his plea, despite his own statements during the plea

colloquy . . . indicating the opposite. This we will not

do, for the plea colloquy process exists in part to prevent

petitioners such as Ramos from making the precise claim

that is today before us. Where the court has scrupulously

followed the required procedure, the defendant is bound

by his statements in response to that court’s inquiry.

170 F.3d at 566 (internal quotation marks omitted). 

The present case presents a closer question than Ramos.

However, as in Ramos, we hold that a term that is

unambiguous on its face and agreed to by the defendant in

open court will be enforced. See Hall v. Maggio, 697 F.2d

641, 643 (5th Cir. 1983) (per curiam) (holding that

defendant’s misunderstanding about life sentence, based on

“common knowledge” and attorney’s misadvice, did not

invalidate plea). We note that the term “life sentence” is not

ambiguous. The United States Constitution does not require

judges to explain the meaning of “life sentence” and other

unambiguous terms during the plea colloquy in order to

combat alleged misinformation that is not revealed on the

record. Cf. Boykin, 395 U.S. at 243-44 (requiring explicit

waiver of certain constitutional rights on the record when

court takes guilty plea); United States v. Hanley, 906 F.2d

1116, 1121 (6th Cir. 1990) (holding that defendant was not

entitled to relief on his claim of ineffective assistance of

counsel where his counsel incorrectly advised him that he

would be eligible for parole in a third of the time he received

for a sentence because the court informed the defendant of the

potential range of incarceration for his crime and advised him

that he would be sentenced under the guidelines); see also

Fed. R. Crim. P. 11(b) (setting forth the elements the federal

court must address when considering and accepting guilty

16 McAdoo v. Elo No. 01-2050

pleas). McAdoo acknowledged in court under oath that he

was agreeing to a life sentence, and the evidence and his

unsworn statement presented to the state court failed to show

that he reasonably believed he was actually agreeing to a

maximum sentence of only twenty years.

 Therefore, the state court did not err in finding that

McAdoo understood the consequences of his plea. The state

court’s findings are entitled to considerable deference under

AEDPA. A federal court may grant habeas relief only where

the state court proceeding “resulted in a decision that was

based on an unreasonable determination of the facts in light

of the evidence presented.” 28 U.S.C. § 2254(d).

Considering the record here, we cannot say that the state

court’s determination that McAdoo knowingly and

voluntarily entered his plea was unreasonable. 

B.

McAdoo next contends that his plea bargain was illusory

because he obtained no real benefit from entering a guilty

plea. The Michigan Parole Board rarely grants parole to

prisoners sentenced to parolable life, as explained by the

Michigan Court of Appeals in People v. Lino:

The reality is that those who receive nonmandatory life

sentences are rarely paroled after ten years, and, in fact,

the majority of defendants sentenced to life

imprisonment are never granted parole. . . . [F]rom 1986

through 1990, only seven prisoners serving parolable life

sentences were paroled. Of the 975 prisoners serving

such a term in 1990, only two were paroled. In 1991,

only one prisoner serving a parolable life term was

paroled. In 1992, again only one prisoner serving a

parolable life term was paroled. 

539 N.W.2d at 549 (citations omitted). In view of these

statistics, McAdoo argues that his “promised benefit will not

materialize.” He argues that he is entitled to a new trial or a
No. 01-2050 McAdoo v. Elo 17

second chance to negotiate a plea bargain because he

“expected he would be released on parole given the

information he received concerning the workings of parole in

Michigan.” 

This argument fails, however, because McAdoo did obtain

his bargained-for benefit – the possibility of parole. Under

Michigan law, a defendant convicted of first-degree murder

faces a sentence of mandatory non-parolable life, while

second-degree murder carries a sentence of parolable life or

any term of years. Pursuant to his plea agreement, McAdoo

was sentenced to three concurrent terms of parolable life. It

was not necessary for the prosecutors or the court to explain

the likelihood of parole to McAdoo. Hill, 474 U.S. at 56. A

defendant’s mere expectation about the parole process is

“simply no ground for habeas relief.” James, 56 F.3d at 667.

As the district court stated, “the relative reluctance of the

Michigan Parole Board to grant parole to prisoners sentenced

to life does not render his plea illusory.” We hold that

McAdoo derived a benefit by avoiding a trial on the firstdegree murder charge which was punishable by life without

parole and receiving instead a sentence of life with the

possibility of parole. As such, his plea was not illusory.

C.

Finally, McAdoo claims that his counsel, Batchelor, was

constitutionally ineffective for allegedly misinforming him of

the consequences of his plea. He requests that this issue be

remanded for an evidentiary hearing. 

McAdoo presented his ineffective assistance of counsel

claim in his application for leave to appeal in both the

Michigan Court of Appeals and Michigan Supreme Court.

Neither court discussed the merits of the issue, and both

denied leave to appeal in orders of one sentence. When a

state court fails to address the merits of a properly raised

ineffective assistance of counsel issue, this court conducts its

review de novo. Maples v. Stegall, 340 F.3d 433, 437 (6th

18 McAdoo v. Elo No. 01-2050

Cir. 2003) (relying on Wiggins v. Smith, 539 U.S. 510

(2003)).

The Supreme Court has adopted a two-pronged test for

determining whether a defendant received adequate assistance

of counsel. Strickland v. Washington, 466 U.S. 668, 687

(1984). First, a defendant must show that counsel’s

performance was deficient, which “requires a showing that

counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Id. at 687. The reviewing court should

“indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance.”

Id. at 689. Second, a defendant must show that counsel’s

deficient performance prejudiced the defendant. Id. at 687.

In order to satisfy the “prejudice” requirement in a plea

agreement context, “the defendant must show that there is a

reasonable probability that, but for counsel’s errors, he would

not have pleaded guilty and would have insisted on going to

trial.” Hill, 474 U.S. at 58-59.

McAdoo’s argument that his counsel was ineffective is

closely tied to his argument that his guilty plea was not

knowing and voluntary. With respect to the ineffective

assistance issue, his brief to this court states that he should

receive an evidentiary hearing because the district court

erroneously relied on the state court’s finding that McAdoo

understood the amount of prison time that he would be

required to serve. McAdoo’s reply brief simply states that the

district court erred in accepting the findings of the state trial

court because McAdoo was denied a full and fair hearing on

the issue. His brief in the district court states that the

incorrect advice establishes deficiency of performance, as a

result of which he entered a plea that was not knowing and

voluntary, and “that fact establishes the prejudice prong.”

Considerable case law supports a determination that giving

erroneous advice about parole may constitute deficient

performance. Affirmative misstatements about parole
No. 01-2050 McAdoo v. Elo 19

9

At his state evidentiary hearing, McAdoo’s counsel did not

specifically ask Batchelor whether he made this statement to McAdoo.

Batchelor, however, implicitly denied the statement by saying that he and

McAdoo did not discuss the Lifer Law. McAdoo, as previously noted,

did not testify.

possibilities are more objectively unreasonable than failure to

inform the defendant about the parole possibilities. James, 56

F.3d at 667 (noting that “this Court and others have

recognized that affirmatively erroneous advice of counsel as

to parole procedure is much more objectively unreasonable

than would be a failure to inform of parole consequences”).

When defense counsel grossly misinforms a defendant about

details of parole and the defendant relies on that

misinformation, the defendant may have been deprived of his

constitutional right to counsel. See Strader v. Garrison, 611

F.2d 61, 65 (4th Cir. 1979). In Meyers v. Gillis, 142 F.3d 664

(3d Cir. 1998), a habeas petitioner argued that his counsel was

ineffective for giving him incorrect advice about parole

eligibility. The Third Circuit granted habeas relief, stating

that “Meyers did not realize he was, in all reality, pleading

guilty to an offense that did not allow him to receive parole in

the future.” Id. The court noted that, while a defendant does

not have a constitutional right to be provided with parole

eligibility information prior to entering a plea, any

information that is provided by defense counsel must be

accurate. Id. at 667 n.2.

McAdoo argues that Batchelor was ineffective because he

allegedly gave McAdoo incorrect information regarding the

terms of the plea agreement. He claims that Batchelor told

him that he would serve at most twenty years in prison.9

Assuming McAdoo’s claim to be true, his argument that his

counsel’s performance was deficient may have merit.

McAdoo’s ineffective assistance claim fails in any event,

however, because McAdoo cannot establish prejudice. The

prejudice prong of Strickland requires McAdoo to show that

there is a reasonable probability that, but for counsel’s errors,

20 McAdoo v. Elo No. 01-2050

he would not have pleaded guilty and would have gone to

trial. 

McAdoo’s exchange with the state judge at resentencing is

at best ambiguous. While he suggested that he might have

fought the case if he had known he would serve a life

sentence, he also said that he did not want his children to be

subjected to a trial. Prior to this time McAdoo had been

present at the preliminary hearing and was aware that the

evidence against him, which included his daughters’

testimony, was overwhelming, a fact that the state courts were

entitled to take into account in determining whether he would

have pled guilty in the absence of any erroneous advice rather

than go to trial on first degree murder charges. McAdoo also

conceded that Batchelor and the court informed him that he

would receive three life sentences. He signed the plea form

indicating three life sentences. Moreover, Batchelor testified

that he did not discuss the Lifer Law with McAdoo. Given

this record and considering McAdoo’s ineffective assistance

claimde novo, we conclude that McAdoo cannot establish the

prejudice prong of his claim – that is, he cannot establish a

reasonable probability that he would not have pled guilty in

the absence of erroneous advice. 

McAdoo requests an evidentiary hearing on the ineffective

assistance of counsel issue and argues that he did not receive

a “full and fair” hearing in state court. Under AEDPA, a

defendant who “failed to develop the factual basis of a claim

in State court proceedings” cannot obtain an evidentiary

hearing unless he satisfies two statutory exceptions not

applicable here. 28 U.S.C. § 2254(e)(2). However, when a

defendant diligently seeks an evidentiary hearing in the state

courts in the manner prescribed, but the state courts deny him

that opportunity, he can avoid § 2254(e)(2)’s barriers to

obtaining a hearing in federal court. Williams v. Taylor, 529

U.S. 420, 437 (2000). A defendant fails to develop the factual

basis of a claim only when he is at fault for failing to develop

the factual record in state court, as when he or his counsel has

not exercised proper diligence, or greater fault, in failing to
No. 01-2050 McAdoo v. Elo 21

10 Addressing the effect of § 2254(e)(2) on McAdoo’s request for an

evidentiary hearing would require us to consider the state court’s

evidentiary rulings and McAdoo’s decision not to testify at the state court

hearing on his motion to withdraw his plea.

develop the record. Id. at 432 ; Moss v. Hofbauer, 286 F.3d

851, 858-59 (6th Cir.), cert. denied, 537 U.S. 1092 (2002).

The test for “failed to develop” is defined as a “lack of

diligence, or some greater fault, attributable to the prisoner or

the prisoner’s counsel” in his or her attempts to discover and

present a claim in the state court. Williams, 529 U.S. at 432;

Thompson v. Bell, 315 F.3d 566, 594 (6th Cir. 2003).

Diligence for purposes of § 2254(e)(2) depends upon

“whether the prisoner made a reasonable attempt, in light of

the information available at the time, to investigate and

pursue claims in the state court.” Williams, 529 U.S. at 435;

Thompson, 315 F.3d at 594. If the petitioner did not fail to

develop the facts in the state court, then the district court may

hold an evidentiary hearing. Williams, 529 U.S. at 433;

Thompson, 315 F.3d at 594; Moss, 286 F.3d at 859. 

Section § 2254(e)(2) may or may not preclude remand for

an evidentiary hearing on the ineffective assistance issue.10

We need not reach this issue, however. Even if we could

remand for an evidentiary hearing, doing so would be futile.

The present record appears to be complete. McAdoo points

to no fact that he could develop on remand that would result

in the granting of the writ. His affidavit in the district court

addresses his claims about erroneous advice but does not

contain anything that relates to the prejudice issue. Nor does

he identify any such evidence in his briefs; he simply relies

on his claim of an invalid plea to establish prejudice. Yet the

state court did not unreasonably find his plea to be valid.

Thus, McAdoo’s claim of prejudice fails.

IV.

For all the foregoing reasons, we affirm the district court’s

denial of McAdoo’s petition for writ of habeas corpus.