* The Ho nora ble Dan Aaron Pol ste r, Uni ted St ates Dist ric t Ju dge f

or the Northern District

of Ohio, sitting by designati on.

1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Six

th Circuit Rul e 206

ELECTRO NIC CIT

ATION: 2004 FED App . 0105A (6th C ir.) File Name: 04a01 05a.06



### UNITED STATES COURT OF APPEALS

FOR THE SIXT H CIR CUIT

_________________
S ILAS T. M C A DOO , Petitione r-Appell ant,

v.

F RANK E LO , Warden Respondent-Appellee. X

- - - -
> , - - N No. 01-2050

Appeal from the United States District Court for the E astern D istrict of Michiga n at Detr oit. No. 98-74705—Paul D. Borman, District Judge.

Argued: February

5, 2003 Decided and Filed: April 15, 2004

Befor e: GILMAN

and GI BBONS, Circuit Judg es; POLSTER, District Judge. *

_________________ COUNSEL

ARGUED: Ja mes R. Ger om ett a, F EDE RAL P UBLIC DEFENDE RS OFFI CE, Detro it, Michig an, for A ppellant

. 2 McAdoo v . Elo No. 01-2050

Debra M. Gagliardi, OFF ICE OF THE ATTORNEY GEN ER AL, CORRE CT IONS DI VISI ON, Lansing , Michigan, Appellee. ON BRI E F: James R. Gerometta, Penny R. Beardslee, FEDE RAL PUBLIC DEFENDERS OFFICE, Detroit, Michiga n, for Ap

pellant. Debra M

. Gaglia rdi, OFF ICE O F TH E AT TOR NEY GEN ER AL, CORRECTIONS DIVI SION, L a nsing, Michigan, Appellee.

_____________________ AMENDED O PINION

_____________________ JU LIASMITH

GIB BONS, Circuit

Judge. Silas McAdoo appeals the district court’s denialof his petition for a writ of habeas corpus. M cAdoo ple d guilty inMichigan

state court to o ne count of second-degree murder and two counts of assault with intent to commit murder. Pursuantto a p lea agree ment, he was se

ntenced to three lif e sentences to run
co nc ur re nt ly. McAdoo la ter clai med that h

is a ttorney misinforme d him about the consequences of a life sentence

. McAdoo raises three issues in this appeal, arguing that (1) h is guilty plea was not knowing and voluntary because he misunderstood

its conseque nces, (2) his plea was illusory based on the effec tive unavailability of parol e for tho se servinga statutory life sentenc e, and (3) his trial counsel was ineffective for alle gedly

misinform

ing McA doo about

his possible sent en ce. For the following reasons, we affirm the district court’s denial of habeas relief.

I.

M cAdoo was cha

rged in Michiga n state c ourt with

on e count of first- degre e murder

and two c ounts of a ssault with i ntent to commit murder. The charges arose f ro m th e stabbing death of McAdoo’s wife, Alicia Kelley , and the stabbing of

two of his daughters. At McAdoo’s preliminary hearin g, his ten and fourteenyear old da ughters testifiedNo. 01-2050 McAdoo v . Elo 3

about the facts of McAdoo’s offenses, all of which occurre d in the family home. On January 9, 1995, the tria l date, McAdoo entered a guilty plea to the lesser offense of second-deg ree murder

and two counts of

assault w

ith inte nt to commit murder. The agreement

was in exchange f

or the dismissal o f the firstdegreemurder

charge that carried a

maximum sentence of life withoutparole. At the plea proceeding, M cAdoo’ s attorney told the court that the plea agreeme nt indicated three li fe sentenc es. M cAdoo 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 pro mi sed him anything other than what the plea form indicated. Sentencingwas held on February 1, 1995. A

t the outse

t, McAd oo’s at torney

stated tha

t McAdoo d

id not wan

t to
w ithdra w his plea, and McAdoo agreed on the r ecord. The court stated that it was ready

to “impose a sentence in accord with the sentenc e agre ement.” It the n sentenc ed McAdo o to parolab le life for the murder conv iction and two concurrent terms of twenty

ye ars impri sonment f or the as sault
conv ictions. The sentencing judge stated, “Count one a n d murder two for a

term of st

atutory lif e whic h is 20 years.” Alth ough the judge indicated an intent to sentence McAdoo in accord with the plea agreement, she failed to do so. First , a statutory life

term doe s not equa

l twenty years in Michig an. Second, the plea a g reement did not call for twenty -year sentences for the assault convictions.

The prosecu

tion then moved to ame nd the sentenc e to conform to the ple a agre ement, whichhad provided for three concurrent

life sentences rather than one life sentenc e and two twenty-y ear sentences. Resentencing occurred on March 24, 1995. McAdoo, then represent ed by h is 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 argue d that 4 McAdoo v . Elo No. 01-2050

there was confusion when McAdoo ent ere d his plea about what the sentence would be. The pro se cutor responded that there was some co nfusion at sentencing, “but not at plea time.” At the resentencing hearing , McAdoo, who was not under oath, had the follow

ing excha nge wit h the state

trial cou rt:
THE COURT : Mr. McAdoo, sir, do you wish to say anything before this Court imposes the correct sentence, which wa s pursuan

t to the ple a agre ement?

DEFENDANTMcADOO: Yes, Judge Braxton. The day that you acc epted my plea, I don’t know if you remember. Iknow you have a lot of cases that you ha

ve to do, but when Batchelor first came befor e you with me, and you asked me more than once did I unde rstand, and you as ke d m e h ow di d I p le ad , a nd I pl ed no t g ui lt y.
Then he took me, and

we went into the back chambers
or in another room, and he made thestatemen t to me, and maybe I am wrong, but I

was told that the three life sentences would be 20, 20, 20 to run co ncurrently, a nd that my kids would not have to be subjecte d to the Cou

rt.

THE COURT: But he did inform y ou that they were three lif e senten ces. I s that cor

rect?

DEFEND ANT McAD OO: Yes, Ma’am.

THE COURT : Which is ind icated on this form

. MR. DEFENDANT: But he, I guess what I a

mtrying to say is, Judge Braxton, that if I had understood wha t he was telling me which, as I stated to y oubefore, I had no knowl edge of

what was going on whatsoever. I have no

–
THE COURT: Now you had some k

nowledg e becau se I spoke to y

ou. But you g o ahead.No. 01-2050 McAdoo v . Elo 5

1 On May 4, 199 5, the court conducted a hearing o n that issue. Dr. Ke ith Dlugokins ki, a psychol ogist from th e prison where McAdoo was incarcer ated, testi fied that McA doo was suffering fr om major de press ion and was bein g medicat ed at the ti me h e ent ered his plea. However, Dlugokinski also test ifi ed that McAd oo’s medications wou ld not have significan tly impa ired his cognitive abilit ies. Alt hough no order denying the motio n to withd raw the plea a ppe ars in the r eco rd, it is evident that the court denied the mo tion. T he issue of M cAd oo’s p sycho logica l state and med ication s has no t been raised in this app eal. DEFENDANT McADOO: What I am try ing to say is my lawyer, B atchelor, he never spoke with me about anything. It wa s just the f irst t ime I ever saw this piece of paper her e was the day tha t you took my

plea agree ment. When I first saw

you, and it was mor

e or less stated to me accept it or get another attorney

. I wr ote all this up, and Iturned it in to the Grievance Commission.

But anyway to sum it all up, he told me something that
was different than what y

ou did, and that’s the only thing Iam arguing, and is the fact that I didn’t understand what he was doing. If I

wo ul d have understood that he was sentencingme to thre e life se nte n ces to the point, why not fight the case?

Ididn’ t want m

y kids to be subjected to it. I t was enough that they went throug h. And then f

or him to tell
me that it wou

ld be the t

hree lif e sente nces, 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. Tha

t’s all I am try ing to sa y to the Court.

The court then conformed the sentence to the writte n plea agreement

and stated that i t would consider McAdoo’s motion to withdraw the plea if he presented evidence that his mental state an d medica

tion prev ented him

from know

ingly entering a guilty

plea. 1 6 McAdoo v . Elo No. 01-2050

2 The “Lifer La w,” M.C.L. § 791.233b; M.S.A. § 28.303(3), pr ovides that prisoner s convic ted of an enumerat ed offen se (su ch as se cond-degree murder) are not eligible for parole until the prisoner has served the minimum term less avai lable d isciplina ry cred its. People v . Li no , 539 N.W.2d 545 , 549 (M ich. Ct. A pp. 1 995 ), overruled on other

grounds by Peo ple v. Car

son , 560 N.W.2d 657 , 665 (M ich. Ct. App. 1996). In McA doo’s case, the “Lif er Law” would have m eant tha t he was likely to be eligible for parole after serving a ppro ximately fifteen years. Lino , 539 N.W.2d at 548- 49 (de fe ndan t s erv in g par ola ble li fe sen ten ce f

or cr ime committe d on or after O ctob er 1, 1 992 , is subject to the jur isdicti on of the parole board and eligible for parole after fif teen years i mprisonment). McAdoo wa s th en appointed a third counsel, Edward Jabbour, who filed another motion to withdraw McAdoo’s guilty plea, arguin g tha t the plea was not knowing and
vo lu nt ar y. The sentencing court held a hearing on this motion
onMarch 7, 1996. Jabbour ar

gued that McAdo o entere d his plea be lie ving that he would be released after twenty y ears imprisonment and that t

his alleg ed misunde

rstandin g nullif ie d the plea.

The court conducted an evidentiary hearing on May

9, 1996, t o det ermin e whet her McA doo’s allege d misunderstanding nullified his plea. A t the May 9, 1996, hearin g, Batchelor testified that his understanding was that the penalty

for first-degr

ee murde r in Mic hi gan wa s a sentence of “natural life” and the penal ty fo r second-degree murder was a sentence of

“parolable” life. He testified that he
was familiar with the “Lifer L aw,” 2 wh ich wou ld have governed McAdoo’s possibility of parole. When asked what his understandi ng of the “Life r Law” was, B atchelor stated, “in terms of what I remembe

r indiscussion with Mr. McAdoo with regards to theLifer L aw, we never discussed it.” When asked whether he had

said anything to Mc

Adoo about wha

t a sentence of

life imprisonment means, Batchelor responded, “I don’t recall s ay ing any thing to h imabout life imprisonment.”

McAdoo presented the testimony of Michael Patrick Martin, prisoner

advoca te for the Way ne County

j ail at the time of McAdoo’s incarceration there, a nd M ark Carrico ofNo. 01-2050 McAdoo v . Elo 7

3 McAdoo lat er st ated in an aff idavit fil ed in t

he dist rict court t hat Batche lorhad told h im that a “li fe sen ten ce” in M ic higan was the equivalent of a twenty -year sente nce and th at he w ould be pa roled in app roxim ately seventeen-and -a-half years. Beca use thi s af fi davit was n ot part of the record before the stat e court, we do not consi der it i n assessing whether the state c ourt’s d ecision to deny M cAd oo’s m otion to with draw his plea was o bjec tively unre ason able. the Team for

Justice, who visited Mc Adoo aft er his incarc eration. Jabbour asked Martin if McAdoo told h i m about the sentence agreem ent contained in the plea agreemen t. Th e prosecution objected to this evidence as he ar sa y. Jabbour argued that the evidence was “ state of mind” testimony, bu t the court sustained the objection. Jabbour attempte d to elicit

the same informat ion from C arrico that he had from Martin. Carrico s tated tha t, at some unspecified

time before McAdoo was t ransfe rred to a state prison to serve his sentence, McAdoo to ld Carric o he would “get ou t in 17 years.”

Jabbour the

n asked the court t

o rule that if McAdoo testified, he could not be questioned

about the underlying

facts of the offense. The court ruled tha t McAdoo could be questioned about any

facts that were relevant to the
mo ti on to wi th dr aw th e p le a. Mc Ad oo di d n ot te st if y. 3

At the close o f the hearing, the court denied McAdoo’ s moti on to with draw hi s guil ty plea, c onclu ding:

If I lo ok at th e t es ti mo ny a nd my v ie w of the witnesses that testified this afternoon, he stated – Mr. Carrico stated he met the defendant ba ck in 1994, and that the defendant’s mother c alled him b ecause he’s a member of the Team for

Justice. He further testified that he visited weekly with the defenda

nt befor e he was sent to Jackson [pris on], and Mr. Carrico also t estified he was at the sente ncing. Mr. Carrico further tes tifie d that defendant told him he would be eligible for paro le in 17 years. That’[s] what your witness mea ns to the understanding the defendant had at that time. 8 McAdoo v . Elo No. 01-2050

Uponquestioning Mr. Batche lor, he in dicated there wa s, in fact, a plea ba

rgain 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 de fendant would give him a better opportunity to put his client in t

he best possibl[e] posture that he could be in, andhe made i t know[n] to his client what his options were a t the time

. . . This Co urt, a fter listening to the witnesses and the testimony that was presented

in terms of

the de fendan t's state of m ind, the de fendant stated it was his understandinghe would be parolable in 17 y ears which, in fact, is the truth. And this Court, when takinga ple a fromany defenda nt as best

as I ca n recall, I’m ver

y meticulous in terms of whether or not the defendant has
an und erstand

ing of w hat it is he 's doing . Of course , I cannot and I do not

go behi nd the sce ne to ask questions
as to w[he]ther or not--what the d e fendant's particular understandingis of what a certain word means to a particul ar defend ant. That I do not do. So, based upon the testimony I 've heard, I deny the def

endant’s motion. Following denial of

his secon

d moti on to withdra

w his guilty plea, McAdoo filed a delay ed applic ation for

leave to app eal to the Michigan Court of Appeals. This application
wa s denied for lack of merit in the grounds pres ented

. McAdoo then filed

a delaye d applicationfor leave to appeal to the Michigan Supreme Court, which was denied.

McAdoo th en 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 deny

ing the petiti on for ha

beas cor pus. McAdoo was granted a certifica te of appeal abili ty w

ith respect to his claims that his plea was involuntar y, t hat hisNo. 01-2050 McAdoo v . Elo 9

4 A certificate of appealabi lit y was deni ed on McAdo o’s cl aim that his attor ney was ine ffective fo r fa il ing to p ursue a dimin ished capa city defense. plea wa s i ll us or y, and that h

is defense counsel was ineffective in advising him about the consequences of his plea. 4

II.
The Antiterrorism and Effective Dea th Penalty Act (“AEDPA”) gove rns this case. Under 28 U.S.C. § 2254(d),
a federal cou

rt ma y n ot grant habeas relief unless the adjudica tion in the state cou

rt proce edings: (1) resulted

in a deci sion that was c o ntrary to, or involved an unreasonable a

pplication of, cle arly established

Federal law, as determined by the Supreme Court of the United States; or (2) resulted

in a decision that was based on an

u nreas onable

determination of the facts in light of the evidenc e prese

nted in the

State court procee ding.

Und er AE DPA, “[a] federal habeas court may not issue the writ s imply because that c ourt concludes in its independe n t judgment that the releva

nt state- court de cision ap

plied cle arly established

federal law erroneously

or incorrectly .” Williams

v. Tayl or , 529 U.S. 362, 4 11 (2000) . Rather, the issue is whether the state court’s applica tion of cle arly

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

A federa l court is t

o apply a presum ption of c orrect

ness to statecourt findings of fact for habeas corpus purposes unless clear and convincing e

vidence is offe red to re

but this presumpt ion. 28 U.S. C. § 2254(e )(1); Warre n v. Smith , 161 F.3d 358, 360-61 (6th Cir. 1998). The appeals cour t gives comple te defere

nce to the

federa l district c ourt’s a

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

v. Sow ders , 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 leve l of fede

ral cons titutional

claims wa

rranting relief i n a habeas action unles s the error r enders t he proce eding so fund amen tally

unfair as to deprive the petitioner of due process under the Fourtee nth A mendment. Estelle v. McGuire , 502 U.S. 62, 69-70 (1991).

III.

A.

We ap pl y t he st andards of AEDPA to McAdoo’s three claims. His first c ontention is that his g

uilty plea wa s no t knowing an d v ol un ta ry b ecause he was mis informed

by h is attorney about the co nsequ ences o f his p lea. A ltho ugh McAdoo acknowl edges

th at he was aware that he was receiving a life sentence, he argues that he misunderstoodthe implications of a life sentence because of e rroneous statemen ts made to him by his lawy er 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 circ umstances and likel

y 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 wa s intell i gent and voluntary .” Boykin v. Alabama , 395 U.S. 238, 242 (1969). Such a showing is gener

ally made by the government’s production of
a transcript of

statecourt proceedings to establish that the plea
was made voluntarily. Garciav. Johnson , 991 F.2d 324, 326 (6th Cir. 1993).

Prior to entering his plea, McAdoo signed the Pretrial Sett lement

and Notice of Acceptance, which indica t ed that th e s entenc e for each of the three offe nses would be life imprisonme

nt. When entering the plea, McAdoo stated under oath that he unde rstood the terms of the plea agreeme nt and that he knowingly a

nd voluntar ily e ntered i nto the ag reemen t. McAdoo also testifie d that no a dditional p

romises, other thanNo. 01-2050 McAdoo v . Elo 11

5 McAdoo al so a tt emp ts to show conf usion about

the cons equences of a parolab le li fe s ente nce bysubmi tt ing evi dence t hat the Stat e Bar of Michigan addressed the issue of t he consequences of a l ife senten ce at an annual me etin g in Sept ember 2000, some fi ve and a hal f years af ter McAdoo entere d his gu ilty ple a and so me fo ur and a half yea rs after his state evident iary

heari ng. Evi dence about th is meet ing obvi ously was not

a part o f the reco rd co nside red b y the state cour t. In any e vent, state men ts at th e annual meeting tend t o show that there was confus ion about th e li kelihood of parole for pri soners s entencedto pa rolab le li fe, but t hey do not indicate that it was reas onabl e to b elieve th at a life sente nce in M ichigan mean t anything other than what its name im plies. those contained in the plea agreement, ha d been made to him. Shortly before McAdoo entered his plea, his attorney stated to the court that the plea agreeme nt called for three life sentence s andthat he ha d discusse d the ag

reemen t with McAdoo. The attor

ney also stated that he had explained McAdoo ’s constitutional rights to him and McAdoo had indicated his understanding.

McAdoo does no t co ntend that the plea colloquy was inadequate. He acknowledgesthat he knew he was agree ing to a life se

ntence. His argument is rather that there was confusionabout

the consequences of a

parolable life sentence inMichigan 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 sent encingthat he would receive “a term of statutory lif e whichis 20 years” a

nd the att orneys’ silenc e after that statemen t. 5

McAdoo contends that his case is analogou s to Hart v. Marion Correctio nal Instit ut ion , 927 F.2d 256 (6th Cir. 1991). In Ha rt , th e s ta te tr ia l j ud ge an d H ar t’ s a tt or ne ys i nco rrectly

informed him that his maximum period of incarceration

would be f

ifteen y ears if h e pled guilty. The maximum was actu

ally seventy -five y ears. This court stated:

This record shows that the court inf ormed Ha rt he cou ld be sentenced from 60 to 150 y ears. The cou

r t 12 McAdoo v . Elo No. 01-2050

immediate ly

qualified that information by adding that the maximum period he could serve for the sente nce woul d be 15 years. Nowhere does the record show that Har twas informed before entering

his plea of

the true sentence, a minimum of 30 year

s and a max imum o f 75. He was informed by the court of

this r ange at his sentencing heari ng, but again at the hearing, the c ourt stated that under Ohio lawhe woul d only serve 15 y ears of the sentence. . . . Al thou gh this statement occurred after Hart entered his plea, it is evidence that the trial judge h

imself did not understand the c on sequences of the plea
a greement

and, ac cordingly, did not gi ve Hart c orrec t information on the consequences of his plea.

Id. at 258. This ca se differs from Hart in that McAdoo was
aware he was r

eceivin g a life sent

ence. U nlike the court in Hart , the state

court in th

is casemade its sole misstatement at the sen t en ci ng , o nl y after the plea had been entered and accepted. Any miss tatem ent by the judge at sentenc ing cou

ld notpossibly have aff

ected McAdoo’s under st anding at the ti me he en te re d h is pl ea , t he re le va nt ti me fo r o ur in qu ir y.
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 te st im on y) that he believed he would be paroled

in seventeen ye ars. This evidence, ho wever, d oes not show that his plea was unknowingly

entered, as the statecourt correctly found. SeeHill v. Lockhart

, 474 U.S. 52, 56 (1985) (“We have never held that the United States Constitution require s the State to furnish a defendant with information about par

ole eligibil ity in order for the d efenda nt’s plea of guilt y to be voluntary.”) ; James v. Cain , 56 F.3d 662, 666 (5th Cir. 1995) (“The United States Constitution does no t require the State to furnish aNo. 01-2050 McAdoo v . Elo 13

6 As a prac tical matt er, any i nformation given t o a defendant about paro le at the t ime he ple ads guilty i s inh erently impreci se. Both par ol e eligibility and li keli hood are unpredi ctable. A number of f actors, such as t he earning of sent ence credits, may af fect the time at which a prisone r bec omes eligi ble f

or parol e. Furth ermore , f actor s su ch as the cri mes of conviction, the entire crimina l reco rd, an d be havio r in pris on may impact the likelihood of parole at a particular ti me after a priso ner becomes eligible for pa role . The like lih ood of parole i s als o affe cted by ch anges in the law a nd in the comp osition and attitudes of p arole bo ard me mbers. See Ja mes , 5 6 F.3 d at 6 66 ( noting that cha nges in L ouisian a’s commuta ti on pro ced ures m ade paro le mo re diffi cult to att ain ). As M cAd oo’s evidence of the 2000 Michiganbar meeting sugges ts, the f act that few Michig an pris oners se ntenced t o parolable l ife are parole d when theyare first eligib le is attribut able to a “political shift .” An assessment of the likeliho od th at M cAd oo w ill be paroled when he be com es eligib le in 201 0 wo uld ha ve be en sp ecula tive in 199 5 whe n he p led gu ilty and is speculative toda y, beca use ther e is no m eans o f ascerta ining future paro le boa rd p olicy o r other releva nt factor s.

7 McAdoo does not claim that t hese evidentiary

rulings made the proce edings so fund amentally unfair as to dep rive him of due p rocess.

8 M cAd oo’s desc ription of t he state co urt ruling is n ot pre cisely

accu rate. W hile cer tainly the state c ourt left open the poss ibil ity of such cross-examinati on, it did so only to t he ext ent an unde rly ing fac t mi ghtbe relevant t o the moti on to wit hdraw the plea. defendant with in fo rmation about parole eligibility in order for the defendant’s plea of g uilty to be voluntary .”). 6

McAdoo’s argument that at the time of his guilty plea there
was confusion in Mic higa n about the consequences of a parolab le life sent

ence is i nte r twined with an argument that the state court made erroneous evidentiary ru ling s at the hearing onhis reque st

to withdraw his plea. 7 First, McAdoo contends t hat the state court erroneously excluded Martin’s “state of mind” te stimony . Second, he conte nds that the state court’s incorrect ruling

that, if Mc

Adoo testi fied, he

could be cross-examined

about the underlying

facts of the case forced him to el ec t n ot to te st if

y. 8 Whatever t he merit o f these evid entiary

arguments, the state court’s evidentiary ruling s 14 McAdoo v . Elo No. 01-2050

did not affect the outcome of thestate hearing . The stat e court heard testimony fr

om Carrico that McAdoo believ e d that he would b e eligi

ble for p arole in

sev enteen a

nd a half ye ars. It ac cepted t

hat testimony

as truthf

ul and als o determined

that McAd

oo’s b eli ef was c onsistent w ith his actual date of parole eligibility under Michigan law.

McAdoo attempts to characterize his misunderstanding about the consequences of

his sentence of parol able life as a misunder standing

about mor

e than his parole e ligibility

date
or the likelihood of

parole. He argues that

he in fact thought
a life s enten ce mean t a twe nty-year sent ence. A ltho ugh McAdoo p resente d no evide nce of th is belief to the stat

e court, at resentenc ing (i n an unsworn statement durin g 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 Ramo s v. R ogers , 170 F.3d 560 (6th Cir. 1999), the de f endant attempted to withdraw his guilty ple a after sente ncing. While acc epting h is ple a, the state trial court asked Ramos whether

he understood that he was not going to receive p robation under any circumstances. Id. at 562. Ramos responded that he understood. Later, he attempted to withdrawhis guilty plea, ar guing that his lawy

er had actually promised him that he would receive “supershock probation.” Id. at 562-63 . On appe al, Ramos contended that he wa s told only that he wa s inelig ib le for pr obation but not that he was ineligib le for

supershock probation. Id. at 563. He testified that he did not know the di ffer ence between supershock probationand “regular” probation. Id. The cour t was not persuaded

by t he arg ument tha

t the indivi dual defend ant’s misunderstanding of a commonly used term rendered his plea void. It held that “such word g ames cann o t be perm itted to vitiate the use of simpl e words in court.” Id. at 565 n.6. Ramos essentially asked the c ourt to rely on his subjective impressiono f the words used, garnered fr om his lawyer’s misstateme

nts, rather than the plain meaning of t he statem ents made in court. This court declined to do so:No. 01-2050 McAdoo v . Elo 15

If we were to rely o n Ramos’s alleged subjective impressionrather

than the record, we would be render ing the plea colloquy proc ess meaningless, for any convict who alleges that he believed the plea bar g a in was different from that outlined in the record could withdraw his plea, despi te his own st ateme nts d uring th e plea colloquy

. . . indicating the opposite. This we will no t do, for the plea colloquy

process exists in part

to prevent petitioners such as Ramos frommaking t he prec ise claim that is today before us. Where the cour

t has scr upulously followed the required procedure, the defe ndant is bound by h is st at em en ts in re sp on se to th at co ur t’ s i nq ui ry. 170 F.3d at 566 (internal quotation marks omitted).

The present

case presen ts a closer question than Ramos

. However, as in Ramo s , w e hold tha t a term that is unambi guous on its fac e and ag reed to by the defen

dant in open co urt will be enforced. See Hall v . Maggio , 697 F. 2 d 641, 643 ( 5th Cir. 1983) ( per curiam ) (holding that defendant’s misunderstandi n g about life sentence, based on “commonknowledge” and attorney ’s misadvi ce, d id not invalida te plea). We

note that the term “life sentence” is not ambiguo us. The United States Constitution does notrequire judges to explain the meaning of “life sentence” and other unambiguous terms during the plea colloquy in ord er to
comba talleged misinformation that is not revealed on the record. Cf. Boyki

n , 395 U.S. a t 243-44 (

requirin g explici t waiver of certain cons titutio nal rights on the record when court takes g uilty plea); United States v. Hanley , 906 F.2 d 1116, 1121 (6th Cir. 1990) (holding that defendant wa s not entitle d to relief on his claim of ineffective assistance of counsel where his counsel incorrectly advised him that he would be elig ible for par

ole in a third of the time he received for a sentence because the court informed the defendant of the potential range

of incar ceration for his c

rime and advised h im that he would be s entenced

under the

guideli nes); see also Fed. R. Crim. P. 11(b) (settingforth the elements the federal
c ourt must addres s when consi derin g and acc eptin g guilt y 16 McAdoo v . Elo No. 01-2050

pleas). McAdoo acknowledged in court u nder oath that he
was agree ing to a l ife sente nce, and the evid

ence an d his
unswornstatemen

t presen ted to the state

court failed to show that he reasonably

believed he w as a ctually ag reeing to a maximum sent

ence of only twenty ye ars. Therefore, the state

court did

not e rr infinding tha t McAdoo understood the consequences of his plea. The state court ’s fin dings are entitled to considerable deferenc e under AEDPA. A federal court may grant habeas relief

only where the state court proceeding “r esul ted in a decision that was based on an unr

easonab le deter

minatio n of the facts in light of the evidence presented.” 28 U. S.C. § 2254(d). Consi deri ng the rec ord here , we can not say that the st

ate court’s determination that McAdoo knowingly and voluntarily entere d his plea was unreasonable.

B.
McAdoo next contends tha t his plea bargain was illusory because h e o btained n

o real be nefit fr om enter ing a g uilty plea. The Michigan Parole Board rarely grants parole t o prisoners sentenced to parolable life , as ex plained by the Michigan Court of Appeals in People v. Lino :
The reality

is tha t those who receive nonmandatory life sentences are rarely

paroled after ten y

ears, and, in fact, the majority

of defendants sentenced to lif e imprisonmentare never

granted parole. . . . [F]rom 1986 throu gh1990, only seven

prisoners serving parolable life sentences were p arole d. Of the 975 prisoners serving sucha term

in 199 0, only two were pa roled. In 1991, only one prisoner ser

ving a p arolabl e life te

rm was paroled. In 1992, again only one prisoner ser

ving a parolable life term was paroled.

539 N.W.2d at 549 (citations omitted ). In vie w of these statistics , McAdoo argues that his “promised benefit will not materialize.” He argues that he is entitled to a new trial or aNo. 01-2050 McAdoo v . Elo 17

second chance to nego tiate aplea bargain because he “expected he would be released on parole given the informationhe rece ived conc erning the work ings of p arole in Michigan.”

This argument fails, however, because McAdoo di d obtain his barga ined-for benef

it – the pos sibility

o f parole. Under Michi gan law, a defendant convicted of first-deg ree murde r faces a sentence of mandatory non- paro lable lif

e, while second-degree

murder carries a sentence of parolable life or any term of ye ars. Purs

uant to his plea agreement, McAdoo
was sentenced to three concurr ent terms of parol able li fe. 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 parol e process is “simply no ground for habeasrelief.” James , 56 F.3d at 667. As the distri ct courtstated, “the relative reluctance of the Michigan Parole Board to grant parole to pr isoners sentenced to life do es not render his plea illusory .” We hold that Mc Adoo derived a benefit by avoiding a trial on the first

degreemurder charge which wa s punishable by life without parole and rec eiving i

n s tead a sentence of life with the po ss ib il it y of

pa ro le . A s s uc h, hi s p le a w as no t i ll us or y.

C.

Fi na ll y, McAdoo c laims that his counsel, Batchelor, was constituti onally

ineffe ctive for alleg edly

misinforming him of the consequences of

his plea. He requests that this issue be remanded for an evidentiary hearing.

McAdoo present

ed his ine ffective assista nce of counsel claim in his application for leave to a ppeal i n both the Mic h igan Court of A

ppeals a nd Michig an Supre

me Court. Neither court discussed the merits of the issue, an d both denied leave to appeal in orders of one sen tence. When a statecourt fails to address the merits of a properly raised ineffective assistance of counsel issue, this court conducts its review de novo

. Maples v . St egall , 340 F.3d

433, 437 ( 6th 18 McAdoo v . Elo No. 01-2050

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

The Supreme Court has ado pte d a two-pronged test for determining

whether a defendant rece ived adequate assistanc e of counsel. Strickland v. Wa shington , 466 U.S. 668, 687 (1984). First, a d efendant must show that counsel’s performancewas def

icient, wh ich “requires a showing that counsel ma d e errors so serious that counsel was not functioning as the ‘counsel’ guarantee d the defendant by the SixthAmendment.” Id. at 687. The reviewing court sho uld “indu lge a strong presumption that counsel’s cond uct falls within the wi de range of reasonable professional assistance.” Id. a t 689. Second, a defendant must show that counsel’s deficient performance prejudiced the def endant. Id. at 687. Inorder to satisfy the “ prejudice” requirem ent in a plea agreement

context, “the defendant must show t hat the re is a
reasona ble probabil ity t

hat, but for counsel’s errors, hewould not have pleaded guilty

and would have insisted on

going to trial.” Hill , 474 U.S. at 58-59.

McAdoo’s argume

nt that his c ounsel wa s ineffe ctive is closely tied to his argument that his guilty plea wa s not knowing and vol u ntary. With respect to the inef fective assistance issue, his

brief to t his court states tha

t he should receive anevid entiary hea ring because the district court
errone ously

relied on the state court’s fi ndin g that McAdoo understood

the amo unt of prison time that he would be required to serve. McAdoo’s reply brief simply states that the districtcourt

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 t he district court states that the incorrect advice e stablishe s deficie ncy of perf ormance , as a result o f which he entered a plea that was not knowing an d voluntary, and “tha

t fact establishes the prejudice prong.”

Considera

ble case law supports a determination that giving
erroneous advi ce about parole may constitute deficient per formance. Affirma

tive missta

tements a

bout paro leNo. 01-2050 McAdoo v . Elo 19

9 At his state ev identi ary hear ing , McAdoo’s couns el di d not sp ecifically ask Bat chel or whe ther he made t

his st ateme nt t o McAdo o

. Batchelor, however, impli citly denie d the st atement by say ing t

hat he and McAdoo did not di scuss the Li fer Law. Mc Adoo, as previ ousl y not ed, did n ot testify. possibilities are more objectively unreasonable than failureto informthe defendant about the parole p ossibilitie s. James , 56 F.3d at 667 (noting that “this Court and others have recognized that

affirmatively e

rroneous advice of

counsel as to parole procedur

e is mu ch m ore obje ctively unreasonable thanwould be a failure to inform of parole consequences” ). When defense

counsel g rossly misinform s a

defendant about detailsof parol e and th e defendant relies on that misinformation, the defendant may have been de

prived 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 tha this counsel was ineffective for giv

in g him incorre ct advic e about pa role el ig ib il it y. The Third Circuit granted habeas re lief, stating that “Me yers d id not realize he was, in all reality , pleading guilty to an offense that did not allow him to rece ive paro le in the future.” Id . The court noted that, while a defendant does nothave a c onstitutional righ t to b e provide d with par ole eligibil ity in f ormation prior to entering a plea, any i n formation

that is provided by defe nse counsel must be accurate. Id. at 667 n.2.
McAdoo argues that Batchelor wa s ineffective because he allege dly gave McAdoo incorrect informa tion regarding the terms of the plea agreement. H e claims that Bat chelor t old him that he would serve at most twe nt y y ears in prison. 9 Assuming McAdoo’ s claim to be true , his arg

ument that his counsel’ s perfor

mance w as defic ient may have mer it.

McAdoo’s ineffective a ssistance claim fa ils in any event, however, because McAdoo ca nnot e stablish prejudice. The prejudice prong of Strickland requires McAdoo to show that there is a rea sonable probabilit y that, but for c ounsel’s

errors , 20 McAdoo v . Elo No. 01-2050

he woul d not h ave plea

ded gui lty a

nd would ha

ve gone to trial.

McAdoo’s exch ange with the st ate judg e at res entenci

ng is at best ambiguou s. While he suggested that he might have fought the case if he had kno wn he would serve a life sentence, he also sa

id that he did not want his children to be subjected to a trial. Pri or to thi s time McAdoo had been present at th e preli minary hear

ing and was aware that the evidence ag ainst him, w hich incl uded his da

ughters’ te st im on y, was overwhe lming, a fact tha t the state courts were entitled to take into account in determining whether he would have pled gu

ilty in the absence of any

erroneous advice rather thango to trial on first degree murder charges. McAdoo a

lso
conc eded th at Batchelor and the court informed him that he would receive three l ife se ntences. He signed the plea form indicating three life sentences. Moreover, Batchelor testified that he di d not d iscuss the Lifer L aw with McAdoo. Given this record and considering McAdoo’ s ineffective assistance claim de novo , we conclude that McAdoo cannot e stablish the prejudice prong of his claim – that is, he cannot establish a reasona ble probability that

he w ould not ha

ve pled g uilty in the absence of erroneous advice

. McAdoo requests an

evidentiary he aringon the ineffective assistance of

counsel i ssue and a

rgues t hat he did not receive
a “full and fair” hearing in state c ourt. Under AEDPA, a defendant who “fa iled to develop the factua

l basis of a

claim inState court proceedings” cannot obtain an e videntiary hearing unless he satisfies two s tatut ory exceptions not ap pli cable

here. 28 U.S.C. § 2254(e)(2). However, whe n a defendant diligently seeks a

nevidentiary he aringin the stat e courtsin the manner prescribed, but the state courtsdeny

him that opportunity, he can avo id § 2254(e )(2)’s b arriers to obtaining a hearing in federal cour t. Williams v. Taylor , 529 U.S. 420, 437 (2000). A defendant fails to develop the factual basis of a claim only whe

n he is at fault for failing to develop the factual record

in state c ourt, as w

hen he or his counsel has notexercised prop er

diligence, or g

reater fault, in f

ailing toNo. 01-2050 McAdoo v . Elo 21

10 Addressing the effect o f § 22 54( e)(2 ) on M cAd oo’s request for an evidentiaryhear ing woul d r equ ire us to c onsid er the sta te cou rt’s evidentiaryrulings and M cAdoo ’s decisi on not to testi fy at t he state court hearin g on his motion t o withdr aw his plea. develop the record. Id. at 432 ; Moss v. Hofbauer , 286 F.3d 851, 858-59 (6 th Cir

. ), cert. denied , 537 U.S. 1092 (2002). The test for “failed to develop” is defined as a “la ck 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; Tho mpson 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 at

tempt, in light of the information avai lable 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 pet itioner di d not fail t

o develop the facts in

the state court, then the district court may hold an ev identi ary hea

ring. 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
aneviden tiar y hearing

on the ineffective assistance issue. 10 We need not r

each thi s issue, however. Even if w e could remand for an

evidentiary

hearing, doing so would be futile. The present record appears to be c om plete. Mc Adoo point s to no fact that he c ould

develop on remand

that would

result inthe granting of the writ. His affida vit in t he dis trict court
a ddress es his claims about erroneous advice but does not contain any thing tha t relate s to the prejudice issue. Nor does he identify any

such evidence in his briefs; he simply relies
onhis claim of an

invalid plea

to establish prejudice. Yet the statecourt did not unreasonably find h is ple a to be valid. Thus, McAdoo’s cla

im of prej udice fa

ils.

IV.

For all the foregoing reasons, we affirm the district court’s denial of McAdoo’ s petition f

or writ of habeas c orpus.