RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 17a0034p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

J OHN R. T URNER , Petitioner-Appellant,

v.

U NITED S TATES OF A MERICA , Respondent-Appellee. ┐ │ │ │ │ │ │ │ ┘ No. 15-6060

Appeal from the United States District Court for the Western District of Tennessee at Memphis. Nos. 2:08-cr-20302-1; 2:12-cv-02266—Samue l H. Mays Jr., District Judge. Argued: October 20, 2016
Decided and Filed: February 15, 2017
Before: MERRITT, BATCHELDER , and ROGERS, Circuit Judges.

_________________ COUNSEL

ARGUED: Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, for Appellant. Murrell G. Martindale, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee. ON BRIEF: Robert L. Hutton, GLANKLER BROWN, PLLC, Memphis, Tennessee, for Appellant. Murrell G. Martindale, UNITED STATES ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellee.

_________________ OPINION

_________________ MERRITT, Circuit Judge. This case arises because our system of federalism allows dual prosecutions by both state and federal sovereigns for one criminal episode without the protection 

### >No. 15-6060 Turner v. United States Page 2

of double jeopardy. Abbate v. United States , 359 U.S. 187 (1959). This appeal presents the question of whether the Sixth Amendment right to counsel may attach befo re formal charges are
filed in federal court. Defenda nt John Turner was arrested in Memphis by officers working with a joint federal-state anticrime task force. He was charged with aggravat ed robbery pursuant to Tennessee law, and retained counsel to repres ent him. During the pendency of the state proceedings, the United States Attorney’s Office and Turner’s attorney in the state proceeding discussed settlement regarding forthcoming federa l charges arising out of the same conduct that led to the state charges. Turner rejected a federal plea offer regarding the as-yet uncharged federal case, but he subsequently pled guilty to the federal charges pursuant to a less-favorable plea agreement. He filed a moti on pursuant to 28 U.S.C. § 2255 to vacate or set aside his federal
conviction based on ineffective assistance of counsel during pl ea negotiations concerning the federal charges. The government argued that be cause Turner had no Sixth Amendment right to counsel regarding plea negotiations conducted prior to the filing of formal charges against him, counsel could not be constitutionally ineffective. Following Sixth Circuit precedent holding that the Sixth Amendment right to counsel does not attach before formal charges are filed, the district court denied the motion without reaching the mer its of the ineffective assistance of counsel claim. Because our precedent requires us to do so, we affirm the judgment of the district court.

I.

The relevant facts are undis puted. Turner robbed four Memphis-area businesses at gunpoint on October 3, 2007. He was arrested by a Memphis police officer working as part of the “Safe Streets Task Force,” a joint federal-st ate task force created to target and prosecute
individuals involved in serious crimes. 1 The complaint was presented to a Shelby County General Sessions judge who signed the arrest wa rrant. Turner was arrested by state officers,
some of whom were assi gned to the task force.

1 The task force is the result of a Memorandum of Understanding between the FBI, the Collierville, Tennessee, police department, the Memphis police department and the Shelby County, Te nnessee, Sheriff’s Office. Officers from each of the four law enfo rcement agencies staff the task force. The Memorandum of Understanding provides that “the criteria for determining whether to pros ecute a particular violation in state or federal court will focus upon achieving the greatest overall benefit to law en forcement and the jurisdiction will be resolved through discussion among all investigative agencies and prosecutive [sic] entities having an interest in the matter.” Memorandum of Understanding at ¶ IV.D.No. 15-6060 Turner v. United States Page 3

Turner retained attorney Mark McDaniel. Several months later, in February 2008, a grand jury in Shelby County return ed three indictments charging Tu rner with aggravated robbery
under Tennessee law. The fourth in dictment, also for aggravated robbery, was returned in June 2008. Turner was then offered a plea deal on the st ate charges that would result in a negotiated sentence of eight or nine years. The state ch arges were resolved through the plea agreement in
March 2009 and are not at i ssue in this appeal.
Although an exact date is not given by the parties, at some point during the summer of 2008 while McDaniel represented Turn er on the state charges, the state district attorney told McDaniel that the United States Attorney’s Office planned to bring federal charges against
Turner and told McDaniel to call Assistant United States Attorney Tony Arvin. Arvin told
McDaniel that the United States planned to bring federal charges against Turner under the Hobbs Act, 18 U.S.C. § 1951, which criminalizes interfe rence with commerce by threats or violence, and for using a firearm during a crime of violence in violation of 18 U.S.C. § 924(c) for each of
the four robberies. On the federal firearm ch arges alone Turner faced a mandatory minimum of 82 years. Assistant United States Attorney Arvin told McDaniel that he would offer Turner a sentence of 15 years on the federal charges on th e condition that Turner accept the offer before
the federal indictment was returned.
McDaniel contends that he relayed the federa l plea deal correctly and timely to Turner,
but Turner did not want to take it. 2 McDaniel claims he spoke to Turner numerous times over the summer of 2008, and Turner told him he understood the federal charges against him and understood that they were separate from the state charges. McDani el says he met with Turner on July 28, 2008, to reiterate to Turner that the United States Attorney was waiting for an answer and that the plea offer of 15 years would e xpire shortly after September 15, 2008, when the charges would be presented to a federal grand jury. Mc Daniel says that Turner told him that 15 years was too much time for what he did. Turn er disputes McDaniel’s version of the events, but he does not dispute that he did not accept the plea offer befo re the federal indictment was returned. Turner then discharged McDaniel an d hired a new attorney. A new Assistant United

2 The district court granted the government’s motion to release McDaniel from the attorney-client privilege only to the extent necessary to respond to Turner’s § 2255 motion.No. 15-6060 Turner v. United States Page 4

States Attorney took over Turner’s case and the best deal that Turner’s new attorney could negotiate was a 25-year sentence. Turner accepted the plea deal with a sentence of 25 years, pleading guilty to four counts of robbery aff ecting commerce in viola tion of 18 U.S.C. § 1951, and one count of using and carryin g a firearm during and in relati on to a crime of violence in violation of 18 U.S.C. § 924(c). He was sentenced to 25 years. He waived his right to direct appeal on the federal char ges pursuant to the terms of the plea agreement.

In 2012, Turner filed a Motion to Vacate, Set As ide, or Correct Sentence by a Person in Federal Custody pursuant to 28 U.S.C. § 2255. Th e sole issue presented was whether defense
counsel McDaniel rendered ineffective assistance of counsel during the plea negotiations on the federal charges. The district court denied th e motion without holding an evidentiary hearing
because it did not reach the fact ual question of whether McDaniel was ineffective. Instead, it decided the issue on the purely legal question of whether Turner’s Sixth Amendment right to counsel on the federal charges had attached at all when Turner rejected the government’s plea
offer and found that it had not.

II.
On appeal, Turner raises two issues: (1) whether his Sixth Amendment right to counsel attached during plea negotiations that occurred pr ior to his federal indictment, and (2) whether the district court should have granted an ev identiary hearing to de velop this claim.
The Sixth Amendment provides that “[i]n al l criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of C ounsel for his defense.” U.S. Const. amend. VI. Whether the Sixth Amendment right to counsel attaches during preindictment plea negotiations is a question of law we review de novo

. United States v. Moody , 206 F.3d 609, 612 (6th Cir. 2000).
A. Supreme Court Precedent
The Sixth Amendment guarantees a right to c ounsel at critical stages of a criminal proceeding. Montejo v. Louisiana , 556 U.S. 778, 786 (2009). Some pretrial proceedings qualify as critical stages, but only if fo rmal charges have been filed. See Missouri v. Frye, 566 U.S. 133,No. 15-6060 Turner v. United States Page 5

(2012) (postindictment plea negotiations); United States v. Wade , 388 U.S. 218 (1967) (postindictment lineups); Massiah v. United States , 377 U.S. 201 (1964) (postindictment interrogations). The Supreme Co urt has not squarely addresse d whether a defendant has the right to counsel during preindic tment plea negotiations, but it has consistently drawn the line at the time of filing of formal char ges, holding that the right to counsel attaches only after the formal initiation of judicial proceedings, rely ing on a purely chronologic al, bright-line test. See
Moran v. Burbine , 475 U.S. 412 (1986) (rejecting claims th at Sixth Amendment right to counsel should attach when confessions during police in terrogation about crimes not yet charged may well seal suspect’s fate); United States v. Gouveia , 467 U.S. 180, 192-93 (1984) (no right to counsel during preindictment admini strative detention of inmates); Kirby v. Illinois , 406 U.S. 682, 689-90 (1972) (plurality opinion) (refusi ng to extend the right to counsel during preindictment police lineup).
Despite the Court’s recognition that certain proceedings “might well settle the accused’s fate and reduce the trial itself to a mere formality,” Wade , 388 U.S. at 224, the bright-line test persists. In addition, the Court has repeatedly recogni zed that the transiti on from investigation by law enforcement to accusations by a prosecutor is a critical juncture. See Gouveia , 467 U.S. at 188-89 (recognizing the importance of counsel at “critical” proceedings, including “when the
accused is confronted with both the intricacie s of the law and the advocacy of the public prosecutor”); Wade , 388 U.S. at 227-28 (counsel attaches at “critical” stages of the criminal process). Recognizing that plea bargains have “become so central to the administration of [the] criminal justice system,” the Court held in two companion cases that a defendant is entitled to
the effective assistance of c ounsel during plea negotiations. Missouri v. Frye , 132 S. Ct. at 1407 (defense counsel has a duty to communicate formal offers from the prosecution); see also Lafler v. Cooper , 566 U.S. 156 (2012) (defendant was entitled to relief when he rejected a plea offer based on counsel’s incorrect advice concerning the federal sentencing guidelines). While Frye
and Lafler recognize that plea negotiati ons are central to the Amer ican system of criminal justice, the plea negotiations in question occurred after indictments had b een filed and the Court did not consider the question of whether the right to counsel attached in preindictment plea negotiations.No. 15-6060 Turner v. United States Page 6

B. Sixth Circuit Precedent
Unlike the Supreme Court, our court has addr essed the precise ques tion of whether the right to counsel attaches in plea negotiations occu rring before the filing of formal charges, and it has adhered to the bright-line rule that the righ t attaches only after formal charges have been
filed. In United States v. Moody , 206 F.3d 609 (6th Cir. 2000), defendant Moody was part of a conspiracy to distribute cocai ne in Florida and Tennessee. The FBI conducted six interviews with Moody while he was unrepresented by counse l during which he made several incriminating statements. A federal prosecutor was present for two of the interviews. The government offered him a plea deal limiting his sentence to no more than five years if he would plead guilty and continue to cooperate with the government. Moody then retain ed counsel who contacted the government and rejected the plea offer without asking about the s ubstance of the interviews and having no knowledge of the self-incriminati ng statements Moody had made during the interviews. Moody was then indicted on charges that exposed him to far more than five years in jail. The same attorney then advised him to plead guilty due to the incriminating statements Moody had made. Moody pled guilty and received a ten-year sentence, double the original maximum sentence offered. Moody then filed a motion to vacate his sentence based on
ineffective assistance of counsel ar ising from the advice to reject the original plea offer with the five-year maximum sentence. The district c ourt granted the motion a nd resentenced Moody to five years.

Our court reversed the distri ct court and found that, alt hough plea negotiations were a critical stage of the proceedings, precedent required it to hold that the right to counsel had not
attached. The Moody court reversed with regr et, calling the br ight-line test it was required to follow a “triumph of the letter over the spirit of the law.” 206 F.3d at 616. The Moody opinion acknowledged that the prosecutor’s preindictment plea negotiations “raise[d] the specter of the unwary defendant agreeing to surrender his right to a trial in exchange for an unfair sentence without the assurance of legal assistance to protect him.” Id. at 615. The opinion also acknowledged that by offering a plea deal, the prosecutor had committed himself to prosecute Moody. Id.No. 15-6060 Turner v. United States Page 7

Our court reaffirmed its reliance on the bright-line test recently in Kennedy v. United
States , 756 F.3d 492 (6th Cir. 2014). In that case, th e defendant argued that the Supreme Court’s
recent decisions in Missouri v. Frye and Lafler v. Cooper, which held that a defendant has a right to the effective assistance of counsel during pl ea negotiations, reopened th e question of when the right to counsel attaches if pl ea negotiations occur. Following Moody , we applied the bright-line test, rejecting Kennedy’s argument that Lafler and Frye indicated that the Court was backing away from the bright-line test re garding when the right to counsel attaches. But, as noted above,
the Lafler and Frye plea negotiations occurred after formal charges had been filed and the Court
did not discuss the issue of whe n, chronologically, the right to c ounsel attached, so we did not find any change in the law with regard to the ri ght to counsel in preindictment plea negotiations based on their holdings. Kennedy , 756 F.3d at 493-94.
Our sister circuit courts are split as to whether the Sixth Amendment right to counsel attaches in preindictment plea negotiations. At l east five other circuit courts follow the brightline test with respect to the righ t to counsel before formal charge s are filed, and four courts allow a rebuttable presumption to the ar gument that the right to couns el attaches only after formal charges are filed. For a discussion of cases from these circu its, as well as a discussion of the changes to modern criminal proceedings that favor a change in the rule, see Steven J. Mulroy, “The Bright Line’s Dark Zone : Pre-Charge Attachment of the 6th Amendment Right to Counsel,” 92 Wash. L. Rev. ___ (2017) (for thcoming) (available electronically at http://dx.doi.org/10.2139/ ssrn.2821179 or on the Sixth Circu it Public Docket Sheet, Turner v.
United States , No. 15-6060 (6th Cir. Sept. 6, 2016), ECF No. 28); s ee also Brandon K. Breslow, Signs of Life in the Supreme Court’s Unchar ted Territory: Why the Right to Effective
Assistance of Counsel Should Attach to Pre-In dictment Plea Bargaini ng, 61-NOV Fed. Law. 34 (Oct./Nov. 2015).

III.

In this case, Turner was alr eady represented by counsel on state charges that had been previously filed. The federal prosecutor told Turne r’s attorney that federal charges arising out of the same incidents would be forthcoming—the re was no doubt that the process had turned
adversarial between the United States and Turner. Indeed, the federal prosecutor asked the stateNo. 15-6060 Turner v. United States Page 8

district attorney to have McDa niel, Turner’s lawyer in the st ate proceedings, contact the United States Attorney’s office to discuss a plea agreem ent concerning forthcoming federal charges, so the United States Attorney’s office considered Tu rner to be represented by counsel. An offer concerning the federal charges wa s extended to McDaniel to pass on to Turner. The offer was contingent on Turner accepting it before the indictment was retu rned. Under these plea agreement terms, Turner could never challenge his attorney’s effectiveness because the negotiations had to take place prior to the fili ng of formal charges or the offer would be
withdrawn.
Turner argues that United States v. Morris , 470 F.3d 596 (6th Cir. 2006), implicitly made an exception to the bright-line rule in Moody in circumstances similar to the ones in this case. Defendant Morris was investigated and arrested by a state-federal jo int task force in Michigan on firearm and drug-related charges. He was initi ally charged in Michigan state court and an attorney was appointed to represent him on thos e charges. The attorney advised Morris on the consequences of the state plea offer and po ssible forthcoming fede ral charges, but she erroneously advised him on the federal sentencing guideline range for the federal crimes. Unlike this case, the state plea deal included dropping the federal charges if Mo rris accepted the offer, so the choice was between federal and state pr osecution. Morris rejected the state plea offer because his attorney incorrectly advised him that the potential sentencing range for the federal charges might be lower. He decided to be pr osecuted in federal court and received a federal
sentence that was double what he would have recei ved in state court. After being indicted in federal court, Morris sought to dismiss the federa l indictment and to be sentenced in the state court based on the attorney’s incorrect advice on the federal sentencing range. The relief was granted and this court affi rmed, all without mentioning Moody

.
This case differs from Morris because the state and federal governments pursued
separate prosecutions against Turner that, although arising out of the same conduct, were independent of each other. This was not an eith er-or choice for Turner as it was for defendant Morris. Turner had an attorney for the state prosecution who was advising him on those charges. The attorney’s advice in the state-court proceeding is not at issue here. But Turner argues, with some force, that the circumstances in Morris point to an implied except ion to the bright-line ruleNo. 15-6060 Turner v. United States Page 9

that formal charges must be filed before the righ t to counsel attaches, at least where federal and state prosecutions are related. Morris found it unfair that a defendant would be offered a plea agreement by the government and simultaneously deny him the right to effective counsel in order to properly evaluate th at plea agreement. Morris , 470 F.3d at 600. That same idea applies here: the federal government made Turner a plea o ffer through his acknowledged attorney, but now argues that because he did not yet have the Sixt h Amendment right to counsel regarding those asyet-unfiled federal charges, any ineffectiveness on the part of counsel is of no matter.
In adversarial plea negotiations like Turner’s, a defendant’s right to trial and to contest
the sentence are often at stake. It makes plea negotiations a “cri tical stage” of the criminal process. Whether they occur before or after the filing of formal charges, it is undisputed that the plea negotiation process is adversarial by nature and the average defendant is ill equipped to navigate the process on his own. The current bri ght-line rule does not allow for the realities of present-day criminal prosecutions and their heav y reliance on plea bargaining. Defendants face an increasing number of federal-state prosecution s that blur the lines of demarcation on exactly when charges are filed for purposes of the Sixt h Amendment right to counsel. Defendants also must navigate the complex web of federal se ntencing guidelines, computations that confound
even those who work with them often.

As we did in Moody sixteen years ago, we restate here the well-reasoned words of Judge Wiseman, sitting by designation, when he obser ved in dissent thirty-five years ago:
The Court has extended the right in new c ontexts that present the same dangers that gave rise to the right originally, those dangers being co nfrontation with the procedural system, the expert prosecutor, or both. In the plea bargaining context, the accused is presented with both of th ese dangers, and therefore those persons who enter the plea bargaining process befo re formal charges have been filed should have the protection of the Sixth Am endment. . . . [W]hen the government begins plea negotiations with a citizen who has not been formally charged, he is just as surely faced with the “prosecutori al forces of organized society” as the defendant who has been formally introduced into the system.
Moody , 206 F.3d at 614-15 (quoting United States v. Sikora , 635 F.2d 1175, 1182 (6th Cir. 1980) (Wiseman, J., dissenting)). Notwithstanding this thoughtful reasoning, we must follow the precedent of Moody and Kennedy

. This panel should not overrule the decision of another panel;No. 15-6060 Turner v. United States Page 10

the earlier determination is binding authority unless a decision of the Supreme Court mandates modification or this Court sitting en banc overrules the prior decision. Whether Turner in fact
received ineffective assistance of counsel during the preindictment plea negotiations in the federal case against him we do not know, and we cannot reach the question today based on our prior rulings. We therefore must affirm the di strict court’s judgment th at Turner’s right to
counsel had not attached.

IV.
Because we adhere to our precedent and find that no right to counsel attaches before the filing of formal charges and because it is undis puted that no formal charges had been filed against Turner when the plea negotiations occurred, an evidentiary hearing w ould be of no value.
We therefore find no error in the district court’s decision to de ny the motion for an evidentiary hearing.
For the foregoing reasons, the judgment of the district court is affirmed.