2

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-12774

Non-Argument Calendar

________________________

D.C. Docket Nos. 2:10-cv-01106-MHT-WC,

2:03-cr-00259-001-MHT-WC-1

LEON CARMICHAEL, SR., 

Petitioner - Appellant,

versus

UNITED STATES OF AMERICA, 

Respondent - Appellee.

________________________

Appeal from the United States District Court

for the Middle District of Alabama

________________________

(August 30, 2016)

Before ROSENBAUM and JILL PRYOR, Circuit Judges, and SCHLESINGER,

∗

District Judge.

 ∗ Honorable Harvey E. Schlesinger, United States District Judge for the Middle District 

of Florida, sitting by designation.

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PER CURIAM: 

Appellant Leon Carmichael, Sr., appeals the district court’s denial of his pro 

se 28 U.S.C. § 2255 motion to vacate, set aside, or correct his sentence. This Court 

granted a certificate of appealability on the issue of whether the district court 

abused its discretion in denying, without an evidentiary hearing, Carmichael’s 

claim that he would have pled guilty if his trial counsel had advised him of the 

extent and nature of the Government’s evidence, the possibility of pleading guilty, 

and the Government’s informal plea offers. 

Recently, the Government filed a supplemental brief to this Court. In it, the 

Government conceded that the district court abused its discretion when it denied 

Carmichael’s ineffective-assistance claim without first conducting an evidentiary 

hearing. Because we agree with the parties and find that Carmichael alleged 

sufficient facts in his § 2255 motion and affidavit that, if proved true at an 

evidentiary hearing, would establish deficient performance and prejudice, we 

reverse the district court’s denial of Carmichael’s § 2255 petition and remand to 

the district court to hold an evidentiary hearing regarding Carmichael’s ineffectiveassistance claim.

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I. Background

A. Carmichael’s Underlying Conviction and Direct Appeal

On June 17, 2005, following an eleven-day trial, a jury found Carmichael 

guilty of two offenses: a marijuana-distribution conspiracy concerning 7,000 

pounds of marijuana, and a money-laundering conspiracy. The district court 

sentenced Carmichael to 480 months in prison, consisting of 480 months in prison 

on the marijuana-distribution conspiracy conviction and 240 months in prison on 

the money-laundering offense, to run concurrently with each other. In addition to 

Carmichael’s prison sentence, the court also ordered Carmichael to forfeit the 

Carmichael Center (an entertainment complex and music venue that Carmichael 

owned), Carmichael’s personal residence, and an automobile. 

Carmichael timely filed a notice of appeal from the final judgment. After 

oral argument, this Court affirmed Carmichael’s conviction and sentence, see

United States v. Carmichael, 560 F.3d 1270 (11th Cir. 2009), and denied 

Carmichael’s petition for rehearing, see United States v. Carmichael, 347 F. App’x 

556 (11th Cir. 2009). The United States Supreme Court denied Carmichael’s

petition for writ of certiorari on January 11, 2010. See Carmichael v. United 

States, 558 U.S. 1128, 130 S. Ct. 1093 (2010). None of the issues Carmichael 

raised in his direct appeal relate to the issues currently before us. 

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B. Carmichael’s § 2255 Motion and Allegations of Ineffective 

Assistance of Counsel

Carmichael, proceeding pro se, timely filed a motion to vacate, set aside, or 

correct his sentence pursuant to 28 U.S.C. § 2255 (“Motion”). He asserted that 

when he was deciding whether to plead guilty or risk a conviction at trial, his 

attorneys failed to explain the weight and extent of the Government’s evidence, 

advise him of the applicable sentence if he was convicted, pursue plea 

negotiations, and convey plea offers from the Government. Carmichael also 

alleged that he was entitled to an evidentiary hearing on his claims. 

In Carmichael’s affidavit in support of the Motion, he alleged specific facts 

about his interactions with counsel regarding plea negotiations, alleging that if he 

had been better informed, he “would not have gone to trial but rather pleaded 

guilty. . . .” Specifically, Carmichael attested that he initially asked the lead 

attorney on his case, Stephen Glassroth, about pursuing plea negotiations with the 

Government. Glassroth responded that he wanted to complete discovery before 

negotiating a plea deal. But Glassroth left the case before conducting plea 

negotiations, and Lisa Wayne, who had been assisting Glassroth before he left,

took over as lead attorney on Carmichael’s case.1 Wayne was located in Denver, 

 1 Glassroth withdrew from Carmichael’s case in November 2004, after serving as lead 

counsel for Carmichael for one year. Attorney Susan James stated in her affidavit that “[a] 

controversial website was created at Carmichael’s direction and as a result his defense was 

undermined and compromised.” James alleged that, related to this website, one of Carmichael’s 

other attorneys at the time, Ron Wise, withdrew; another of Carmichael’s attorneys, Bruce 

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Colorado. Attorney Marion Chartoff assisted Wayne. Glassroth had previously 

hired Chartoff as a contract attorney to conduct research, draft motions and briefs, 

and assist Glassroth and Wayne with tasks related to the case. After Glassroth 

withdrew from Carmichael’s case, Carmichael also hired attorney Susan James to 

assist Wayne. 

According to Carmichael, when he asked James about pursuing plea 

negotiations, James responded that she was new to the case and advised 

Carmichael that he should contact Wayne. James also informed Carmichael that 

Wayne directed James not to do anything on the case without Wayne’s permission. 

As for Wayne, Carmichael alleged that she said that she would make several 

trips to Montgomery to work on the case and conduct plea negotiations, if possible. 

But, Carmichael attested, Wayne never made the promised trips to Montgomery 

and instead arrived in Montgomery only two days before the start of Carmichael’s

trial.

Carmichael further alleged that Wayne never mentioned any plea offers to 

Carmichael and, from that, Carmichael “assumed, in [the] absence of word from 

[his] attorneys to the contrary, that the Government did not want to negotiate a 

 

Maddox, became a trial witness; and “Steve Glassroth, after being threatened with indictment, 

withdrew.” Glassroth indicated to Wayne “that he had been ordered not to discuss the reasons 

for his removal from the case, and that [Wayne] would have to try the case without his 

assistance, or presence.”

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plea.” As Carmichael related the relevant facts, Carmichael discovered only later 

that the Government was receptive to negotiating a plea and did offer plea deals. 

In addition, Carmichael asserted that James told him that she and Wayne had 

gotten their signals crossed when it came to communicating plea offers to 

Carmichael. According to Carmichael, Wayne thought James was communicating 

with Carmichael regarding plea negotiations because James was local counsel and 

Wayne was in Colorado, but James was not because she had received no such 

direction from Wayne. As a result, Carmichael contended that he was never fully 

advised about his case or plea negotiations “because each of [his] lawyers thought 

the others were discussing such matters with [him].” Carmichael stated that he 

“sensed a large measure of dysfunction and lack of coordination between attorneys 

Wayne, James, and Chartoff,” and that, because of this dysfunction, he believed 

that plea offers made by the Government were never relayed to him. 

As an example in support of Carmichael’s allegation that his defense counsel 

lacked coordination and failed to communicate with him regarding plea 

negotiations, Carmichael alleged that after the jury returned its verdict, he 

overheard a conversation between Assistant United States Attorney Stephen Feaga 

and James in which Feaga referred to a previous five-year plea offer that 

Carmichael had never heard about from his attorneys. 

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After hearing this conversation, Carmichael asked James about the five-year 

plea offer, but James refused to respond to his inquiries and instead referred 

Carmichael to Wayne. Wayne, in turn, told Carmichael that “local” counsel would 

take care of such matters and would be responsible for any and all plea 

negotiations (referring to James). Carmichael stated that if he had known about the 

five-year plea offer, he “probably would have executed” it. 

As another example, Carmichael alleged that, also after the jury verdict, his 

attorneys informed him that the Government had made a plea offer while the jury 

was deliberating. But his attorneys told him that they did not convey the offer to 

him because he was at the hospital visiting his sick mother at the time the 

Government made the offer. According to Carmichael, by the time his attorneys 

communicated this alleged plea offer to him, the jury had already reached its guilty 

verdict. Carmichael attested in his affidavit that he “would most definitely [have] 

taken any reasonable deal at that juncture because [he] had no doubt that the jury 

would convict [him] after sitting through the trial and realizing all the mistakes 

made, the unduly prejudicial evidence/testimony presented against [him] and the 

lack of effective assistance of counsel.” 

Finally, Carmichael stated that his counsel never informed him that the 

Government could introduce certain damaging evidence at trial and that, had he 

known about this evidence, he would have pled guilty. 

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C. Defense Attorneys’ Affidavits in Response to Carmichael’s § 

2255 Motion

In response to Carmichael’s Motion and his supporting affidavit, on January 

4, 2011, the district court ordered several of Carmichael’s attorneys to file 

affidavits with the court addressing Carmichael’s ineffective-assistance 

allegations.2

i. Lisa Wayne’s Affidavit

As relevant to Carmichael’s allegations, Wayne conceded that she had not 

visited Montgomery to conduct trial preparation because resources for her to do so 

were unavailable, though she attested that she engaged in numerous phone calls 

with Carmichael and his other attorneys in preparation for trial. 

Because James was local, Wayne stated that she and James agreed that 

James would meet with Carmichael, continue to coordinate the investigation, and 

strategize for trial. Wayne asserted that she did not direct James or any of the other 

lawyers that they could not perform services as they saw fit, though she 

acknowledged that there was “discord” between herself and James and that Wayne 

and James “disagree[d]” regarding case investigation and trial strategy. She also 

stated that Carmichael did not hire her to direct other lawyers, she did not agree to 

do so, and Carmichael never asked her to do so. 

 2 While as many as twelve attorneys represented Carmichael during his pre-trial, trial, 

and appellate proceedings, we discuss the affidavits of only Wayne, Chartoff, and James in this 

opinion, as these attorneys’ affidavits provide the relevant information regarding Carmichael’s 

ineffective-assistance claim.

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In Wayne’s affidavit, she only briefly responded to Carmichael’s allegations

concerning plea negotiations. Wayne stated that she recalled a conversation with 

Glassroth about a disposition that did not involve forfeiture of the Carmichael 

Center, but since she was not in a position to communicate with the Government

about a plea offer while Glassroth was lead counsel, she assumed a favorable 

negotiation never occurred. Wayne also asserted that she was never aware of any 

discussions that James may have had regarding a five-year plea offer. Despite 

Wayne’s assertion that she had numerous phone conversations with Carmichael 

regarding the strength of the Government’s evidence against him in his case, 

Wayne stated that Carmichael maintained his innocence throughout the time she 

represented him. 

ii. Susan James’s Affidavit

James claimed that, once Glassroth withdrew from the case, Wayne elevated 

herself to lead counsel, and James understood from Wayne that all aspects of 

Carmichael’s defense “would be at Wayne’s direction.” Indeed, James 

emphasized that her deference to Wayne as lead counsel was a condition of 

Wayne’s agreement with Carmichael to hire James after Glassroth withdrew from 

the case. But Wayne did not come to Alabama to prepare for trial until a few days 

beforehand, so no strategy meetings, discussions on anticipated evidentiary issues, 

or meaningful delegation of assignments occurred in the case. 

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James further asserted that she believed Carmichael was denied effective 

assistance of counsel. In particular, James agreed with Carmichael’s statement that 

he received no plea-negotiation information because James and Wayne each 

thought that the other was handling negotiations with the Government. According 

to James, Carmichael’s assessment that his defense team was dysfunctional, and 

his trial attorneys lacked coordination was correct. 

Regarding James’s plea negotiations with the Government, James attested 

that she recalled a conversation with Feaga the weekend before Carmichael’s trial 

where Feaga said that he could “run a plea offer ‘up the flag pole’ with his 

supervisors if Carmichael would be so inclined to take it.” But James thought that 

any plea offer would include forfeiture of the Carmichael Center. James stated that 

she thought she mentioned this to Carmichael, and Carmichael was “adamant [that] 

he did not want to forfeit the Carmichael Center.” So no one took any further 

action with regard to the offer. James vaguely recalled “talking with the 

prosecutors at some point about a 20 year deal,” but she did not recall a plea offer 

made during jury deliberations. 

Finally, James conceded that it was possible that some of the evidence 

elicited at trial was never discussed with Carmichael because, although James had 

frequent contact with Carmichael, all four trial lawyers were never present with 

him at the same time until the weekend before his trial. 

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iii. Marion Chartoff’s Affidavit

As a contract attorney hired to assist Glassroth and Wayne, Chartoff stated

that she did not recall ever having a comprehensive conversation with Carmichael 

regarding all the prejudicial information that could be introduced against him, and 

she did not know if other counsel had had such a conversation. But Chartoff did 

recall a meeting that was held a week before Carmichael’s trial at which the 

defense team discussed some of the witnesses who could present damaging 

evidence against Carmichael. 

Like James, Chartoff attested that Wayne was lead counsel and had ultimate 

decision-making authority over the case. She also stated that Wayne was 

responsible for “oversight of co-counsel.” 

After Glassroth’s withdrawal as lead counsel, Chartoff opined, the defense 

team lacked coordination and organization, and disputes and tensions existed 

among members of defense counsel. Despite these issues, though, Chartoff 

asserted that she was unaware of any plea offers made to Carmichael. She likewise 

had no knowledge of any effort to negotiate a plea for Carmichael. 

D. The Government Attorneys’ Affidavits in Response to 

Carmichael’s § 2255 Motion

In its response to Carmichael’s Motion, the Government also submitted 

affidavits from some of the prosecutors involved in the case. These affidavits 

establish that the Government sought to settle Carmichael’s case with a plea deal 

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and, at least at one point, attempted to negotiate a plea deal that did not include 

forfeiture of the Carmichael Center. But these affidavits also provide that the 

Government never made any concrete plea offers because Carmichael’s counsel 

gave the Government the impression that Carmichael was uninterested in settling 

the case.

i. A. Clark Morris’s Affidavit

First Assistant United States Attorney A. Clark Morris represented the 

Government in Carmichael’s prosecution. Morris attested in her affidavit that 

“[d]uring the two weeks prior to [Carmichael’s] trial, the Government attempted to 

negotiate a settlement of the case.” In pursuit of this settlement, AUSA Morris 

stated that the Government spoke with James about the possibility of settling the 

case. Morris concluded, however, that “it was clear that Carmichael was 

uninterested in settling the case, [so] the Government never made any concrete or 

formal settlement offer for either [a] five, ten or twenty year[ ] sentence.” 

On the other hand, Morris recounted that the Government had had 

discussions with Carmichael’s attorneys regarding the “possibility of a ten year 

sentence with forfeiture of the Carmichael Center,” but never entered into 

discussions regarding a five-year sentence. 

Morris stated that “the Government never made any formal settlement offer” 

to Carmichael largely because of the Government’s understanding that Carmichael 

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would deny any settlement that included forfeiture of the Carmichael Center. 

Because any plea agreement the Government might enter with Carmichael had to 

be approved by United States Attorney Leura G. Canary, who was adamant that 

any plea agreement include forfeiture of the Carmichael Center, Morris stated that 

“plea negotiations were never profitable.” 

ii. Stephen P. Feaga’s Affidavit

Assistant United States Attorney Stephen Feaga also represented the 

Government in its prosecution of Carmichael. Feaga attested that he “recall[ed] a 

couple of discussions with the defense about the possibility of a guilty plea by Mr. 

Carmichael.” But, as Feaga recalled the plea conversations in which he was 

involved, “[a]ll discussions included mandatory language that any sentencing 

reduction recommendation would be based on an assessment of Mr. Carmichael’s 

cooperation in the prosecution and conviction of other guilty parties.” The plea 

negotiations that Feaga discussed did not require forfeiture of the Carmichael 

Center as a mandatory term of any plea offer.

Feaga further attested that, initially, the Government was willing to enter 

into only a plea agreement that, at best, called for a sentence recommendation of 

no more than twenty years. Then, after discussions with United States Attorney 

Leura G. Canary, the Government offered defense counsel the possibility of a 

sentence recommendation as low as ten years if the Government, in its sole 

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discretion, believed Carmichael provided extraordinary substantial assistance. But

Feaga recalled that Carmichael’s counsel wanted a guarantee of less time, and the 

Government was “never willing to enter into such an agreement.” Feaga stated 

that the Government never offered Carmichael a plea agreement that included a 

five-year sentence recommendation and noted that the plea discussions with 

Carmichael’s counsel never resulted in any agreement. 

E. The District Court’s Decision

Based on the filings in the case and without an evidentiary hearing, the

magistrate judge issued a report and recommendation (“R&R”) recommending that 

the district court deny Carmichael’s Motion. In reaching this conclusion, the 

magistrate judge noted that Carmichael’s attorneys undertook plea negotiations 

with the Government but opined that they were hamstrung by Carmichael’s 

insistence that he would not forfeit the Carmichael Center as part of any plea deal. 

Moreover, because the Government did not make any firm plea offers, the R&R 

reasoned, counsel did not perform deficiently in failing to convey an offer to 

Carmichael. In addition, the R&R found no evidence that the district court would 

have sentenced Carmichael to less than forty years’ imprisonment had he not gone 

to trial. Finally, the R&R reasoned that, while not dispositive, Carmichael’s claims 

of innocence throughout his trial undermined his claim that he would have pled 

guilty. As a result, the R&R explained, Carmichael’s allegations, taken as true,

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failed to demonstrate that he was prejudiced by the alleged deficiencies in his 

counsel’s performance. 

Carmichael filed a pro se objection to the R&R. In his objection, 

Carmichael disputed that he refused to accept any plea agreement that included 

forfeiting the Carmichael Center, noted that a defendant who maintains his 

innocence may still have reasons for pleading guilty, and argued that he 

demonstrated prejudice. He also argued that the magistrate judge erroneously 

determined that, because the plea negotiations did not result in firm offers, counsel 

did not perform deficiently by failing to communicate regarding plea negotiations. 

Rather, Carmichael argued that nothing requires a plea offer to be firm before it is 

communicated to a defendant, and that Carmichael’s counsel failed to 

communicate with him regarding the informal plea negotiations. 

In addition, Carmichael filed a motion and supporting affidavit specifically 

requesting an evidentiary hearing on his claims. In his affidavit, Carmichael 

reiterated that James had not informed him of any pre-trial plea negotiations and 

that he was not told that the Government had offered a ten-year sentence with 

forfeiture of the Carmichael Center. Carmichael alleged that, had he been told 

about this deal, he would have accepted it. He also stated that, after the forfeiture 

hearing but before Carmichael’s sentencing, Carmichael received a twenty-year 

offer from the Government in exchange for his cooperation, but that James and 

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appellate counsel indicated that it was not a good deal. In Carmichael’s view, this 

was the post-trial, twenty-year offer that James vaguely recalled in her affidavit. 

The magistrate judge denied Carmichael’s motion for an evidentiary 

hearing, and the district court adopted the R&R, denying Carmichael’s § 2255 

motion.

F. COA and Supplemental Briefing in this Court

At Carmichael’s request, a judge of this Court granted a certificate of 

appealability on the following issue:

Whether the district court abused its discretion in 

denying, without an evidentiary hearing, Carmichael’s 

claim that he would have pleaded guilty if his trial 

counsel had advised him of the extent and nature of the 

Government’s evidence, the possibility of pleading 

guilty, and the Government’s informal plea offers.

While the Government initially filed responsive briefs arguing that the district 

court did not abuse its discretion in denying Carmichael’s Motion without an 

evidentiary hearing, in supplemental briefing, the Government changed its 

position. 

Now, the Government agrees with Carmichael that the district court abused 

its discretion in denying Carmichael’s Motion without first conducting an 

evidentiary hearing. Specifically, the Government states that it “will pretermit 

argument on the merits of the ineffective assistance of counsel claims until after a 

full evidentiary hearing on the issues has transpired.” While the Government

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maintains that Carmichael did not receive constitutionally ineffective assistance of 

counsel, the Government now concedes that the district court should have held an 

evidentiary hearing on Carmichael’s claims because Carmichael adequately pled 

facts in his § 2255 Motion that, if proved to be true at a hearing, would establish

deficient performance and prejudice.

We agree.

II. Standard of Review

This Court reviews a district court’s denial of an evidentiary hearing in a § 

2255 proceeding for an abuse of discretion. Rosin v. United States, 786 F.3d 873, 

877 (11th Cir. 2015) cert. denied, 136 S. Ct. 429 (2015) (citing Aron v. United 

States, 291 F.3d 708, 714 n. 5 (11th Cir. 2002)). 

III. Discussion

A petitioner is entitled to an evidentiary hearing if he alleges facts that, if 

true, would entitle him to relief. Hernandez v. United States, 778 F.3d 1230, 1232 

(11th Cir. 2015). But a district court need not hold an evidentiary hearing if the 

petitioner’s allegations are “patently frivolous,” “based upon unsupported 

generalizations,” or “affirmatively contradicted by the record.” Id. (quotations 

omitted). 

When a petitioner alleges ineffective assistance of counsel in the context of 

plea negotiations, the two-part test articulated in Strickland v. Washington, 466 

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U.S. 668, 104 S. Ct. 2052 (1984), applies. See Rosin, 786 F.3d at 877. Therefore, 

in order to be entitled to an evidentiary hearing on an ineffective-assistance claim, 

a petitioner must show that (1) trial counsel’s performance was deficient; and (2) 

trial counsel’s deficient performance prejudiced his defense. Id.

We agree with the parties in this case that the district court abused its 

discretion in not granting Carmichael’s request for an evidentiary hearing on his 

ineffective-assistance claim. Taking Carmichael’s allegations as true, Carmichael 

alleged sufficient facts to establish both deficient performance and prejudice in the

context of plea negotiations.

A. Carmichael sufficiently alleged deficient performance.

Under the first prong of Strickland, counsel’s performance is deficient if it 

falls below an objective standard of reasonableness and is “outside the wide range 

of professionally competent assistance.” Johnson v. Sec’y, DOC, 643 F.3d 907, 

928 (11th Cir. 2011) (quoting Strickland, 466 U.S. at 688, 690, 104 S. Ct. at 2064, 

2066). Courts must indulge the “strong presumption” that counsel’s performance 

was reasonable. Jennings v. McDonough, 490 F.3d 1230, 1243 (11th Cir. 2007)

(quoting Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (quotation omitted)). As a 

result, a petitioner must show that “no competent counsel would have taken the 

action that his counsel did take.” Chandler v. United States, 218 F.3d 1305, 1315 

(11th Cir. 2000) (en banc). 

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While the duties and responsibilities of defense counsel in the pleabargaining process are difficult to define, as the “art of negotiation is at least as 

nuanced as the art of trial advocacy,” defense counsel must communicate formal 

plea offers from the prosecution. Missouri v. Frye, 566 U.S. __, 132 S. Ct. 1399,

1408 (2012) (quotation omitted). In addition, counsel has an obligation to consult 

with her client on important decisions and to keep him informed of significant 

developments in the course of his prosecution. Diaz v. United States, 930 F.2d 

832, 834 (11th Cir. 1991). Negotiating a plea agreement stands as a “critical point 

for a defendant” in the development of his case. Frye, 566 U.S. at __, 132 S. Ct. at 

1407.

Here, if the allegations in Carmichael’s Motion and supporting documents

are true, Carmichael sufficiently pled deficient performance to warrant an 

evidentiary hearing. First, Carmichael attested that none of his attorneys ever 

discussed plea negotiations with him until after his conviction and that Wayne and 

James each thought that the other was communicating with him regarding plea 

offers. And with the exception of James’s statement that she “thought” she had 

mentioned to Carmichael the possibility of a plea involving forfeiture of the 

Carmichael Center, James agreed with Carmichael that he did not receive pleanegotiation information because James and Wayne each thought that the other was 

handling negotiations with the Government. 

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As for James’s remarks that “Carmichael was adamant [that] he did not want 

to forfeit the Carmichael Center,” Carmichael responded that James never told him 

of the deal for ten years and forfeiture of the Carmichael Center. To the extent that 

James’s statement that she “thought” she had told Carmichael about the plea offer 

contradict Carmichael’s claims that she did not do so, a material conflict requiring 

a hearing exists. Indeed, Carmichael’s other attorneys’ affidavits do not establish 

that they actually discussed plea negotiations with him, either.

Further, Carmichael alleged that the “dysfunction and lack of coordination” 

between his attorneys led to plea negotiations not being communicated to him. 

Supporting this allegation, James attested that Wayne, as lead counsel, instructed 

her not to take any action without instruction from Wayne. But Wayne attested 

that she was not lead counsel and did not direct the other lawyers on Carmichael’s 

defense team. Chartoff seemed to align with James on this issue, stating that

Wayne was lead counsel, had ultimate decision-making authority over the case, 

and oversaw co-counsel. Chartoff, Wayne, and James all acknowledged that 

tensions and discord among members of the defense team affected how they

handled Carmichael’s case.

While Carmichael’s attorneys all blamed each other for failing to 

communicate with Carmichael concerning plea negotiations, the Government 

attorneys confirmed that plea negotiations with Carmichael’s team did, indeed,

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occur. Morris recalled a ten-year plea offer with Carmichael’s attorneys, provided 

that forfeiture of the Carmichael Center was part of any deal. And Feaga 

remembered discussing a twenty-year and a ten-year sentence recommendation 

with Carmichael’s attorneys, both premised on Carmichael’s providing the 

Government with “extraordinary substantial assistance.” Though Morris said that 

plea negotiations did not progress because Carmichael (apparently through his 

attorney) was adamant that any settlement would not involve forfeiture of the 

Carmichael Center, Morris’s statement does not contradict Carmichael’s assertions 

that his attorneys never advised him that a ten-year plea deal might be available if 

he forfeited the Carmichael Center. Beyond that, Feaga’s affidavit discusses two 

plea discussions premised on substantial cooperation, not on forfeiture. None of 

Carmichael’s attorneys attested to conveying any information about such plea 

discussions to Carmichael. Although the Government’s plea offers were informal, 

Carmichael’s counsel had a continuing obligation to consult with Carmichael 

regarding important developments, including plea negotiations, in his case. See 

Diaz, 930 F.2d at 834; Frye, 566 U.S. at __, 132 S. Ct. at 1407. Otherwise, such 

informal plea negotiations would be unlikely to turn into formal plea offers. 

In short, Carmichael has alleged sufficient facts that, if true, would establish 

deficient performance. 

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B. Carmichael sufficiently alleged prejudice.

As for Strickland’s prejudice prong, a petitioner must show a reasonable 

probability that, but for counsel’s unprofessional errors, the result of the 

proceeding would have been different. Lafler v. Cooper, 566 U.S. __, 132 S. Ct. 

1376, 1384 (2012). We have clarified that a “reasonable probability” is a 

“probability sufficient to undermine confidence in the outcome.” Osley v. United 

States, 751 F.3d 1214, 1222 (11th Cir. 2014). In the plea-negotiations context, the 

prejudice requirement focuses on whether counsel’s unconstitutionally ineffective 

performance affected the outcome of the plea process. Hill v. Lockhart, 474 U.S. 

52, 59, 106 S. Ct. 366, 370 (1985). To demonstrate prejudice where the petitioner 

did not enter a guilty plea but instead proceeded to trial, the petitioner must show 

that, but for the ineffective assistance of counsel, a reasonable probability existed 

that (1) the plea offer would have been presented to the court (i.e. the defendant 

would have accepted the plea and the prosecution would not have withdrawn it in 

light of intervening circumstances); (2) the court would have accepted its terms; 

and (3) the conviction or sentence, or both, under the offer’s terms would have 

been less severe than under the judgment and sentence that were, in fact, imposed. 

Lafler, 566 U.S. at __, 132 S. Ct. at 1385.

Here, Carmichael sufficiently alleged that counsel’s deficient performance

prejudiced him. First, Carmichael sufficiently alleged facts that, if taken as true, 

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establish both that a plea offer would have been made and that he would have 

accepted a plea deal. While Carmichael maintained his innocence throughout the 

proceedings, he also attested that he instructed his counsel to seek a plea deal. 

And though James stated that negotiations on at least one plea offer stalled because 

Carmichael did not want to forfeit the Carmichael Center, Carmichael stated that 

he would have pled guilty and accepted the ten-year offer even with the inclusion 

of the forfeiture of the Carmichael Center. In addition, as we have discussed, the 

ten-year plea negotiation that Feaga referenced did not include forfeiture of the 

Carmichael Center, and Feaga instead cited the defense team’s desire for a 

guaranteed lower sentence as the impediment to the deal. Thus, the record does 

not conclusively contradict Carmichael’s assertion that he would have accepted a 

guilty plea.

Nor does anything in the record indicate that the Government would have 

withdrawn the offers it communicated during plea negotiations. The record is 

likewise devoid of anything indicating that the court would not have accepted the 

plea deals discussed in the informal plea negotiations. Finally, the ten- and twentyyear plea offers that counsel discussed are significantly less than the forty years’ 

imprisonment that Carmichael eventually received at sentencing. 

Because Carmichael has alleged sufficient facts that, if true, establish 

ineffective assistance of counsel, an evidentiary hearing is warranted.

Case: 14-12774 Date Filed: 08/30/2016 Page: 23 of 24 
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IV. Conclusion

For the foregoing reasons, we REVERSE the district court’s denial of 

Carmichael’s § 2255 petition and REMAND to the district court to conduct an 

evidentiary hearing on Carmichael’s ineffective-assistance claim.

Case: 14-12774 Date Filed: 08/30/2016 Page: 24 of 24