United States Court of Appeals

For the Eighth Circuit

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No. 15-3607

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Glen Ray Allen

lllllllllllllllllllllMovant - Appellant

v.

United States of America

lllllllllllllllllllllRespondent - Appellee

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Appeal from United States District Court 

for the Western District of Arkansas - Hot Springs

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 Submitted: February 10, 2017

 Filed: April 14, 2017

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Before SMITH, GRUENDER, and BENTON, Circuit Judges.

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GRUENDER, Circuit Judge.

Glen Ray Allen pleaded guilty to conspiring to distribute more than 1,000

kilograms of marijuana and possessing with intent to distribute more than 100

kilograms of marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district

The Honorable Lavenski R. Smith became Chief Judge of the United States 1

Court of Appeals for the Eighth Circuit on March 11, 2017.
court sentenced Allen to 120 months’ imprisonment, which was affirmed on appeal. 

Allen petitioned for a writ of habeas corpus pursuant to 28 U.S.C. § 2255, claiming

that he was denied his Sixth Amendment right to effective assistance of counsel. The

district court denied the petition without an evidentiary hearing. We granted a

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certificate of appealability and now affirm.

I. BACKGROUND

The facts underlying Allen’s conviction are set forth in our prior opinion,

United States v. Allen, 705 F.3d 367, 368-69 (8th Cir. 2013). We repeat those facts

here as relevant for the instant appeal.

Following the initial filing of the criminal complaint in April 2010, Allen and

a co-defendant ultimately were charged by superseding indictment with conspiring

to distribute more than 1,000 kilograms of marijuana (count one) and possessing with

intent to distribute more than 100 kilograms of marijuana (count two). He faced a

mandatory minimum sentence of ten years on count one and five years on count two. 

See 21 U.S.C. § 841(b)(1)(A) and (B). Beginning in May 2010, attorney Tylar Tapp

represented Allen, Allen pleaded not guilty to both counts, and Tapp filed a motion

to suppress evidence seized from Allen’s car. On July 29, 2010, the Government

offered a plea deal in which Allen would plead guilty to count two, face a mandatory

minimum of five years, and stipulate to a total offense level of 29—yielding an

advisory sentencing range of 97 to 121 months’ imprisonment. The plea offer was

contingent on Allen withdrawing the suppression motion. 

The Honorable Robert T. Dawson, United States District Judge for the

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Western District of Arkansas, now retired, adopting the report and recommendations

of the Honorable Barry A. Bryant, United States Magistrate Judge for the Western

District of Arkansas.

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Tapp thoroughly discussed the plea offer with Allen, but Allen was unhappy

with the terms and did not want Tapp negotiating with the Government any further.

Allen told Tapp that his sentence under the plea offer “was too much time for me to

do according to my involvement.” Based on these instructions, Tapp sent a letter to

Allen in September 2010 confirming that the suppression hearing wasset for October

2010. Tapp wrote, “It is my belief and understanding that I am going forward with

this hearing and not to do any other negotiations unless told otherwise by you. If

your opinion changes then please do not hesitate to let me know as soon as possible.” 

Initially, Tapp had advised Allen to reject the plea offer and move forward with the

motion to suppress. Tapp changed his position, however, when he learned that the

Government could prove Allen was speeding prior to the search. Around this time

and without Tapp’s knowledge, Allen attempted to file an independent motion to

suppress with the district court. Allen then informed the district court that he wished

to retain different counsel. The district court allowed Tapp to withdraw and

postponed the suppression hearing. Afterwards, Allen filed another pro se motion

asserting there was insufficient evidence supporting the charges. On December 9,

2010, Allen retained Clay Janske to represent him.

Allen informed Janske that he was not interested in a plea deal and instructed

him not to discuss the existing plea offer. In fact, Allen hired Janske specifically

because he “would not be scared” to try the case before a jury. On this basis, Janske 3

proceeded with the motion to suppress, which was denied. Following the denial of

the motion to suppress and a few days prior to trial, Allen’s co-defendant pleaded

guilty and agreed to testify against Allen. Around this time, the Government also

indicated that if Allen proceeded to trial, it intended to seek an enhanced sentence

based on Allen’s prior felony drug convictions. See 21 U.S.C. § 851. If convicted

on count one, Allen would face a mandatory sentence of life imprisonment; if

In a letter sent to the district court after he pleaded guilty and was sentenced,

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Allen wrote, “I did mention [to Janske] that I didn’t want to discuss a plea.” 

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convicted on count two, Allen would face a mandatoryminimumsentence of 10 years

and a maximum sentence of life imprisonment. 

At this point, Janske broached the subject of a plea offer. Because Allen

proceeded with the suppression hearing, the Government offered a plea deal in which

Allen would conditionally plead guilty to both counts without the § 851

enhancements, reserving the right to appeal the denial of his motion to suppress.

Allen accepted the plea offer, conditionally pleaded guilty to both counts, and faced

a mandatory minimum sentence of ten years on count one and five years on count

two. The district court calculated an advisory sentencing guidelines range of 121 to

151 months’ imprisonment and sentenced Allen to concurrent 120-month terms, the

mandatoryminimumfor count one. On appeal, we affirmed the district court’s denial

of the motion to suppress. Id. at 370.

After his appeal, Allen filed this § 2255 petition, along with an affidavit and

exhibits, alleging that he was denied his Sixth Amendment right to effective

assistance of counsel. The Government responded with a brief and affidavits from

Tapp and Janske. Among other claims, Allen argued that Janske gave erroneous

advice that Allen would only get “a couple of more years” if he proceeded to trial

instead of pleading guilty. Janske attested that this advice had been based on

inaccurate information that Allen had provided about his criminal history. Allen

argued that had Janske properly advised him about the potential of a mandatory

sentence of life imprisonment if convicted on count one, he would have accepted the

Government’s initial offer and pleaded guilty before the suppression hearing. 

Instead, he pleaded guilty shortly before trial and faced a ten-year mandatory

minimum instead of a five-year one.

The district court, adopting the report and recommendation of the magistrate

judge, denied Allen’s petition without an evidentiary hearing. Reviewing the record,

it found that Allen specifically told Janske that he was not interested in plea

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negotiations and to proceed with the suppression hearing. Even after the court denied

the motion to suppress, Allen continued to forbid counsel from negotiating a plea

deal. It concluded that “[o]nly when a co-defendant pled guilty and offered to testify

against him and the Government indicated it would seek to enhance his sentence if

the case went to trial, did Allen consider entering a plea agreement.” We granted a

certificate of appealability on the question of whether Janske’s failure to advise Allen

of a possible mandatory life sentence constituted ineffective assistance of counsel.

Allen now appeals.

II. DISCUSSION

“It has long been recognized that the [Sixth Amendment] right to counsel isthe

right to effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771

n.14 (1970) (citations omitted). This right extends to the plea-bargaining process

such that “[i]f a plea bargain has been offered, a defendant has the right to effective

assistance of counsel in considering whether to accept it.” Lafler v. Cooper, 566 U.S.

156, 168 (2012). In order to establish ineffective assistance of counsel, Allen must

demonstrate that his counsel’s performance was both deficient and prejudicial. See

Strickland v. Washington, 466 U.S. 668, 693 (1984). 

“In determining whether counsel’s conduct was [deficient], there is a ‘strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.’” Nguyen v. United States, 114 F.3d 699, 704 (8th Cir. 1997)

(quoting Strickland, 466 U.S. at 689). Additionally, “[s]trategic choices made after

thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable.” United States v. Rice, 449 F.3d 887, 897 (8th Cir. 2006) (quoting

Strickland, 466 U.S. at 690). To demonstrate that counsel’s deficient performance

prejudiced his defense, Allen must show that there is a “reasonable probability that,

but for [his] counsel’s unprofessional errors, the result of [his] proceedings would

have been different.” Strickland, 466 U.S. at 694; see also Sanders v. United States,

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341 F.3d 720, 722 (8th Cir. 2003) (“[T]he defendant must show that, but for his

counsel’s advice, he would have accepted the plea.” (quotation omitted)). “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome,” which “requires a substantial, not just conceivable, likelihood of a different

result.” Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quotations omitted). In the

plea-bargaining context, this means a claimant must demonstrate a substantial

likelihood that (1) he would have accepted the offer to plead pursuant to the earlier

proposed terms, (2) neither the prosecution nor the trial court would have prevented

the offer from being accepted, and (3) the plea terms would have been less severe

than under the judgment and sentence that were actually imposed. See Lafler, 566

U.S. at 164; see also Missouri v. Frye, 566 U.S. 133, 148 (2012). 

We review § 2255 post-conviction ineffective-assistance claims de novo and

the underlying findings of fact for clear error. United States v. Regenos, 405 F.3d

691, 692-93 (8th Cir. 2005). “We review the district court’s decision to deny an

evidentiary hearing for abuse of discretion.” Id. at 693. Assuming without deciding

that Allen has demonstrated that his counsel’s performance was deficient, see

Boysiewick v. Schriro, 179 F.3d 616, 620 (8th Cir. 1999), Allen has failed to show a

substantial likelihood that he would have accepted the offer to plead guilty pursuant

to the more favorable terms offered prior to the suppression hearing. As a result,

Allen has not proven that Janske’s advice prejudiced his defense.

Allen contends that he was prejudiced by Janske’s allegedly erroneous advice

that Allen would only get “a couple of more years” if he proceeded to trial instead of

pleading guilty. Allen points to the fact that once he learned of the possibility of a

life sentence, he quickly pleaded guilty. This, he asserts, is sufficient to show a

“substantial, not just conceivable, likelihood” that he would have accepted the initial

plea offer had Janske advised him of the possibility of a life sentence. See Cullen,

563 U.S. at 189 (quotations omitted). Allen’s claims, however, run contrary to the

record, which is clear that Allen’s decision was motivated by his belief that the plea

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offer was not favorable enough and his hope that he would succeed on the

suppression motion. 

Allen conceded that he thought the initial plea offer “wastoo much time for me

to do according to my involvement” and thus told Tapp that he was not interested in

negotiating with the Government. When Tapp expressed doubt about the chances of

success on the motion to suppress, Allen attempted to file his own motion to suppress

and fired Tapp. After that, Allen filed another pro se motion to dismiss the

indictment, claiming there was insufficient evidence to support the charges. Allen

then hired Janske specifically because Janske “would not be scared” to go to trial and

told Janske that he was not interested in negotiating a plea. Even after his

suppression motion was denied in January 2011, Allen forbade Janske from

negotiating a plea deal. Allen did not plead guilty until April 2011, after his codefendant had agreed to testify against him and the Government had indicated that

it would seek an enhanced sentence if Allen proceeded to trial. The district court

found that both factors—the co-defendant testimony and the possible

enhancement—influenced Allen’s decision to plead guilty. In other words, Allen

failed to prove that “but for his counsel’s advice, he would have accepted the plea.” 

See Sanders, 341 F.3d at 722 (emphasis added). Under similar circumstances, we

concluded a habeas claimant failed to show prejudice in part because he was

“unwilling[] to consider pleading guilty,” had “always expressed a desire to proceed

to trial, and none of counsel’s discussions about the possibility of a guilty plea

seemed to sway him.” Id. at 723. Thus, we conclude that Allen failed to prove, by a

substantial likelihood, that he would have accepted the offer to plead pursuant to the

earlier proposed terms.

Finally, the district court did not abuse its discretion in denying Allen’s request

for an evidentiary hearing. “A § 2255 motion can be dismissed without a hearing if

(1) the petitioner’s allegations, accepted as true, would not entitle the petitioner to

relief, or (2) the allegations cannot be accepted as true because they are contradicted

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by the record, inherently incredible, or conclusions rather than statements of fact.” 

Regenos, 405 F.3d at 694. Here, Allen’s claim that he was prejudiced by his

counsel’s purported deficient performance is contradicted by the record. Thus, the

district court did not abuse its discretion in denying Allen’s § 2255 petition without

an evidentiary hearing.

III. CONCLUSION

For the foregoing reasons, the judgment of the district court is affirmed.

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