NOT RECOMMENDED FOR FULL
- TEXT PUBLICATION File Name: 15a0242n.06
No. 14
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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FRANK CHRISTOPHER , Petitioner
- Appellant ,

v. UNITED STATES OF AMERICA , Respondent
- Appellee . ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: SUHRHEINRICH , CLAY , and ROGERS , Circuit Judges.
CLAY , Circuit Judge. Defendant Frank Christopher appeals the district court’s denial of his petition to vacate or set aside his conviction pursuant to 28 U.S.C. § 2255. Christopher was convicted of conspiracy to possess with intent to distribute cocaine in violation of 21 U.S.C. § § 846 and 841(a)(1) , and he was sentenced to a term of 120 months of imprisonment. We REVERSE and REMAND for the reasons set forth below.

BACKGROUND On April 21, 2009, Christopher was charged with one count of conspiracy to possess with intent to distribute, and distribution of cocaine. The government’s case against Christopher was strong

— it included the testimony of a coconspirator , as well as ten recorded phone conversations where Christopher is heard negoti ating purchases of cocaine for distribution . The government offered Christopher a Ru le 11 plea agreement t hat would dramatically decrease his sentencingNo. 14

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2 guidelines range relative to the 151 to 181 months of imprisonment he was facing if he were to go to t rial; he would face only between 30 to 37 months pursuant to the plea agreement

. Other defendants charged in the conspiracy with Christopher were offered and accepted similar deals. Christopher’s attorney indicated that he had discussed the deal with Chr i stopher, but Christopher was not interested and wished to proceed to trial. In 2011, Christopher was convicted and sentenced to the mandatory minimum of 10 years of imprisonment. Christopher claims that he did not directly appeal his conviction based on the advice of his trial attorney

. In January of 2012, Christopher wrote the court asking that his case be reviewed because his “lawyer failed to properly advise [him] about taking [the] deal that was offered or going to trial due to his cocaine abuse.” ( R. 2308, 2255 Ltr., PageID # 16368). It had only just dawned on Christopher “that being represented by a fellow cocaine abuser may not have been in [his] best interest.” ( Id. ) Christopher alleged that he “[had] done cocaine with [ his attorney] at least 20 times,” including while reviewing discovery materials . ( Id. ) The court construed Christopher’s letter as a motion to vacate or set aside the judgment pursuant to
28 U.S.C. § 2255. Christopher was appointed counsel , and supplemental briefing was filed on January 9, 2014. He confirmed (in a declaration made under penalty of perjury) the allegation s made in his letter. He also explained that he had known his attorney personally for nearly thirty
years and offered add itional details respecting their joint cocaine usage during the pendency of his case . Christopher alleged that during the representation “he delivered cocaine to [his attorney] on approximately twelve occasions, a lways in an amount of two grams. ” On one occasion , he alleged, his attorney directed him to search for his name among a stack of discovery materials while they both were high on cocaine. That is the only time, according to Christopher,No. 14

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3 that they reviewed the evidence

— he did “not receive a copy o f any discovery . . . and did not hear any” of the incriminating phone calls prior to his trial

. (R. 2530

- 1, Decl., PageID # 18601) The only advice allegedly offered by Christopher’s attorney was that “the government’s case was weak and [that] co nspiracy was difficult to prove. ” ( Id. ) On that basis alone , Christopher asserted, he rejected the plea deal , which he would have otherwise accepted had he k nown the strength of the government’s case against him. The government asserted below that Christophe r would not have pleaded guilty , inasmuch as he protested his innocence throughout trial, and for that reason, he was not entitled
to any relief. The government also asserted that Christopher’s allegations did not amount to a claim for ineffective assistanc e of counsel, and that the allegations were unbelievable because they were contradicted by the record . The district court adopted without qualification the reasoning provided in the government’s brief and denied Christopher’s motion. This appeal followed

.
DISCUSSION The district court’s denial of a § 2255 motion to vacate or set aside a judgment is reviewed de novo where , as here, the district court has made no findings of fact. See Jenkins v. United States , 394 F .3d 407, 410 (6th Cir. 2005). Pursuant t o § 2255 , a federal prisoner may seek relief from the imposition of a sentence if he has suffered prejudice as the result of a n error of constitutional magnitude

. Griffin v. United States , 330 F.3d 733, 736 (6th Cir. 2003)

. Ineffective assistance of coun sel claims are an appropriate basis for relief under § 2255. See United States v. Ca ver , 470 F.3d 220, 250 (6th Cir. 2006) . Whether a n attorney’s assistance is constitutionally deficient is a mixed question of law and fact. United States v. Jackson , 181 F.3dNo. 14

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4 740, 744 (6th Cir. 1999). Thus, this Court also reviews de novo the legal aspect of an ineffective assista nce of counsel claim. Id. Ineffective assistance of counsel claims are typically governed by Strickland v. Washington , where a petitioner must demonstrate (1) that the attorney’s performance was constitutionally deficient , and (2) that he was prejudiced by this deficiency . 466 U.S. 668, 687 (1984). 1 The seco nd prong is satisfied only if there exists a reasonab le probab ility that the trial’s outcome would have differed but for the attorney’s error. Ross v. United States , 339 F.3d 483, 490 (6th Cir. 2003). The Strickland test also applies in the plea

- bargaining context, where it is naturally less burde nsome to prove pre judice, because the petitioner “need only show a reasonable probability that he would have pleaded differently.” Griffin , 330 F.3d at 737. “A claim of ineffective assistance can hinge on one allegation or, as here, the cumulative effect of several.” Ca ballero v. Keane , 42 F.3d 738, 741 (2 d Cir. 1994). Christopher has alleged sufficient facts to support, if true, a finding that he received ineffective assistance. On its own, drug usage may “be a significant factor when determining the [in] adequacy of [ the] representation.” Id. at 740

. Actual conflicts of interest also provide cause to find ineffective assistance of counsel. See Moss v. United States , 323 F.3d 445 (6th Cir. 2003). Th e alleged supplier

- client relationship in this case suggests the possibility of an actual conflict of interest on the theory that, were Christopher to cooperate with the government and divulge information about his cocaine distribution, Christopher’s attorney would be at risk of the government discovering his own i llegal drug use

. See Rugiero v. United States , 330 F. Supp. 2d 900 , 907 (E.D. Mich. 2004) ( “It is the existence of this undeniable uncertainty regarding [the attorney’s] own liberty and financial interests before and during Petitioner’s trial and [the att orney’s]

1 We decline to consider as unnecessary whether Christopher’s claim may be appropriately considered under the framework of Cuyler v. Sullivan , 446 U.S. 335 (1980), and its progeny , where prejudice may be presumed.No. 14

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5 knowledge of this uncertainty that gives rise to the actual conflict in this case.” )

. Even absent this conflict, Christopher has sufficiently alleged deficient performance: he alleged both that his attorney failed to review or inform him of the e vidence in his case and that he was told not to worry because “the government’s case was weak and conspiracy was difficult to prove.” (R. 2530

- 1, Decl., PageID # 18601). Th e failure to review salient evidence with a client or to offer meaningful advic e a s to the likelihood of conviction at trial are both grounds fo r finding ineffective assistance. See Smith v. United States , 348 F.3d 545, 552 (6th Cir. 2003) (“A criminal defendant has a right to expect at least that his attorney will review the charges w ith him by explaining the elements necessary for the government to secure a conviction, discuss the evidence as it bears on those elements, and explain the sentencing exposure the defendant will face as a consequence of exercising each of the options avail able.”)

. For the aforementioned

reasons, Christopher may have satisfied the first prong of the Stri c kland inquiry.
We next turn to whether the facts as alleged support a finding of prejudice. They do

. Christopher averred that he would have pleaded guilty had he understood the strength of the case against him. “Although some circuits have held that a defendant must support his own assertion that he would have accepted the offer with additional object ive evidence, we in this circuit have declined to adopt such a requirement.” Griffin , 330 F.3d at 737

. Moreover, t he substantial difference between Christopher’s actual sentence and the range of sentences available under the plea he was offered is “stron g evide nce of a reasonable probability ” that he wou ld have accepted the agreement were it not for his attorney’s deficient counsel. Sm ith , 348 F.3d at 552. The government’s contention

— that Christopher’s claim is foreclosed because he continued to protest
his innocence at trial

—

has previously been rejected by this Court. See id. Christopher hasNo. 14

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6 asserted that he would have accepted the plea and, under these circumstances, that is enough if his allegations are shown to be truthful

. The final inquiry is w hether the district court was required to hold an evidentiary hearing before denying Christopher’s claim

. Valentine v. United States , 488 F.3d 325, 331 (6th Cir. 2007). We review the district court’s denial of a hearing for an abuse of discretion. Ross v. United States , 339 F.3d 483, 490 (6th Cir. 2003). At the outset, we recognize that “a full blown evidentiary hearing” is not required in every instance. Smith , 348 F.3d at 550 (internal quotation marks omitted). However, a petitioner is due some form of hearing suited to the circumstances, “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C. § 2255(b). This qualification is a useful , but narrow exception to the default ru le that a petitioner is due a hearing once he has stated a viable claim.
See Valentine , 488 F.3d at 33 3 (“The burden on the petitioner in a habeas case for establishing an entitlement to an evidentiary hearing is relatively light.” (internal quotation mar ks omitted) ). However, “no hearing is required if the petitioner’s allegations cannot be accepted as true because they are contradicted by the record, inherently incredible, or conclusions rather than statements of fact.” Arredondo v. United States , 178 F.3d 778, 782 (6th Cir. 1999) (internal quotation marks omitted) . Furthermore, a district judge “may rely on his or her recollections of
the trial” in denying the motion. Id. Christopher has satisfied his burden. The government points to a status conference where the incriminating phone calls were mentioned as proof that Christopher was aware of the evidence against him. We are unpersuaded by this line of argument. The gover nment places too much significance on this fleeting reference in a single status conference. Even a ccepting that Christopher was fully aware that the government’s evidence included allegedly incriminatingNo. 14

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7 phone calls, there is no inconsistency with the no tion that he was unaware of those phone calls’

content or legal import

. We are also not persuaded by the fact that Christopher’s attorney acknowledged on the record that Christopher was aware of but rejected the plea offer

. We previously held in Smith th at an evidentiary hearing was required, despite the attorney’s sworn affidavit attesting that the petitioner “never consider ed a plea [even] though it was discussed.” 348 F.3d at 550. The natural purpose of the hearing , in th at instance, was to determine the content of th ose discussions

— mainly, whether or not the attorney offered meaningful counsel, in order to allow the defendant to make an informed judgment with respect to his pleading options

. The government’s position is weaker here than it was in Sm ith

— there is no attorney affidavit suggesting that Christopher was “disgust[ed]” by the idea of taking a plea, and Christopher’s allegations included

— in addition to the failure to offer meaningful advic e

— his attorney’s drug

use . Id. at 549. Christopher a verred that his attorney advised him, “the government’s case was weak and conspiracy is hard to prove.” To state the obvious, it is both rational and reasonable for a client to rely on the advice offered by his or her legal counsel. The constitutional gu arantee to effective counsel anticipates and safeguards this reliance. We recognize that t he district judge may be familiar with the parties and is in the best position to gauge a petitioner’s credib ility. H owever, without the benefit of the district court’s reasons for denying the motion, we are left with only the record and Christopher’s declaration for our consideration

. Christopher’s burden for obtaining a hearing was light, and he met that burden becaus e the record did not “conclusively show” that he was entitled to no relief. Valentine , 488 F.3d at 332.No. 14

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8 CONCLUSION We find that the district court abused its discretion by dismissing Christopher’s petition without a hearing. The judgment of the distric t court is therefore REVERSED and REMANDED for further proceedings.