United States v. Anthony Pender , 514 F. App'x 359 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-6806
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
ANTHONY PENDER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Deborah K. Chasanow, Chief District
Judge. (8:06-cr-00083-DKC-1; 8:09-cv-00034-DKC)
Submitted: February 15, 2013 Decided: March 20, 2013
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Anthony Pender, Appellant Pro Se. David Ira Salem, Assistant
United States Attorney, Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Anthony Pender appeals from the denial of his 28
U.S.C.A. § 2255 (West Supp. 2012) motion. We previously granted
a certificate of appealability on the issue of whether Pender
received effective assistance of counsel in relation to plea
bargaining negotiations. After additional briefing, we vacate
the district court’s order and remand for further proceedings.
To succeed on his ineffective assistance claim, Pender
must show that: (1) counsel’s failures fell below an objective
standard of reasonableness and (2) counsel’s deficient
performance was prejudicial. See Strickland v. Washington, 466
U.S. 668, 687 (1984). The Supreme Court recently addressed the
standard for showing ineffective assistance during the plea
bargaining stage in Lafler v. Cooper, 132 S. Ct. 1376 (2012),
and Missouri v. Frye, 132 S. Ct. 1399 (2012). In Lafler, the
Court held that the Sixth Amendment right to counsel applies to
the plea bargaining process and prejudice occurs when, absent
deficient advice, the defendant would have accepted a plea that
would have resulted in a less severe conviction, sentence, or
both. Lafler, 132 S. Ct. at 1384-85. In Frye, the Supreme
Court held that a component of the Sixth Amendment right to
counsel in the plea bargaining context is that counsel has a
duty to communicate any offers from the Government to his
client. Frye, 132 S. Ct. at 1408.
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In § 2255 proceedings, “[u]nless the motion and the
files and records of the case conclusively show that the
prisoner is entitled to no relief, the court shall . . . grant a
prompt hearing thereon, determine the issues and make findings
of fact and conclusions of law with respect thereto.” 28 U.S.C.
§ 2255(b). An evidentiary hearing in open court is required
when a movant presents a colorable Sixth Amendment claim showing
disputed facts beyond the record or when a credibility
determination is necessary in order to resolve the issue.
United States v. Witherspoon, 231 F.3d 923, 926-27 (4th Cir.
2000). We review a district court’s refusal to conduct an
evidentiary hearing for an abuse of discretion. Conaway v.
Polk, 453 F.3d 567, 582 (4th Cir. 2006).
Here, the district court recognized that an issue of
fact existed. Specifically, Pender averred that his attorney
failed to seek a plea bargain even though the evidence against
him was quite strong and he faced a mandatory life sentence if
convicted. Without submitting an affidavit from defense counsel
or the Assistant United States Attorney, the Government
responded that Pender was in fact offered a beneficial plea
agreement but he turned it down. 1 The court concluded that,
1
In his notice of appeal and in his informal brief, Pender
states that he had no knowledge of this plea offer. However,
(Continued)
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regardless of how the factual dispute was resolved, there was no
ineffective assistance. We find, to the contrary, that Pender
alleged sufficient facts to state a claim of ineffective
assistance. Because these facts are in dispute, a hearing was
necessary before ruling on the case.
When the district court decided Pender’s motion, it
had before it Pender’s sworn assertion that his counsel failed
to pursue a plea agreement when faced with a very weak case for
trial and a mandatory life sentence upon conviction. The court
also had the Government’s unsworn, unauthenticated assertion
that Pender had been offered a plea agreement that he personally
rejected. The district court correctly noted that there is no
constitutional right to a plea agreement and that the decision
to initiate plea negotiations is a strategic decision within the
purview of defense counsel. See Weatherford v. Bursey, 429 U.S.
545, 561 (1977); Hawkman v. Parratt, 661 F.2d 1161, 1171 (8th
Cir. 1981). However, counsel is still required to be a
“reasonably effective advocate” regarding the decision to seek a
plea bargain. Brown v. Doe, 2 F.3d 1236, 1246 (2d Cir. 1993).
Thus, if Pender could show, as he alleged, that there was no
reasoned strategy to his attorney’s decision not to pursue a
these allegations were not before the district court because
Pender did not respond to the Government’s answer.
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plea bargain, we conclude that Pender would have satisfied the
first Strickland prong and shown that his attorney’s actions
were unreasonable.
The record in this case showed that drugs and a
firearm were found in Pender’s bedroom closet, a closet which
contained his possessions. Pender’s defense at trial to charges
of possession with intent to distribute the drugs and possession
of the firearm was that his girlfriend had access to and shared
the closet with him and the drugs and firearm could have just as
easily been hers. See United States v. Pender, No. 06-5283 (4th
Cir. Jan. 11, 2008) (unpublished). While counsel may have
reasonably believed that this defense was strong enough to
forego pursuing a plea bargain even with a mandatory life
sentence on the line, there is no affidavit from counsel in the
record, and the district court was then left to guess at
counsel’s motives and strategy, if any.
While counsel does not have a general duty to initiate
plea negotiations, here there is no evidence that counsel was
acting reasonably or strategically, and the decision to forego
plea bargaining exposed Pender to a mandatory life sentence. We
find that the record and Pender’s presumably true allegations
considered together were sufficient to raise a material issue of
fact as to whether Pender’s attorney’s actions were unreasonable
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in failing to pursue plea negotiations. 2 Moreover, this is a
unique case because the Government concedes that a plea bargain
with a beneficial sentence would have been (or was) offered had
counsel pursued it. As such, assuming his attorney unreasonably
failed to pursue plea bargaining and given that Pender avers
that he would have accepted such a plea, Pender has shown that
he was prejudiced by his attorney’s actions.
Thus, we vacate the district court’s order and remand
so that the district court can either hold a hearing or
otherwise further develop the record before ruling. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
2
Of course, given the Government’s response and Pender’s
allegations in his informal brief, it does not appear that, had
a hearing been held, this would have been the issue under
consideration. Instead, the court would likely have been faced
with a factual dispute as to whether Pender was at the plea
offer meeting and, if not, whether his attorney communicated the
offer to him. Nonetheless, as the Government notes, this issue
cannot be considered on appeal because it was not timely raised
before the district court.
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