United States v. Kevin Dickerson , 546 F. App'x 211 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6485
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KEVIN NEVOYLE DICKERSON, a/k/a Hebe,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of Virginia, at Roanoke. Samuel G. Wilson, District
Judge. (7:10-cr-00011-SGW-RSB-1; 7:12-cv-80528-SGW-RSB)
Submitted: October 29, 2013 Decided: November 13, 2013
Before KEENAN, DIAZ, and THACKER, Circuit Judges.
Vacated in part and remanded by unpublished per curiam opinion.
Kevin Nevoyle Dickerson, Appellant Pro Se. Donald Ray Wolthuis,
Assistant United States Attorney, Roanoke, Virginia, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kevin Nevoyle Dickerson, a federal prisoner, filed a
28 U.S.C. § 2255 motion contending, inter alia, that his counsel
provided ineffective assistance by advising him to reject a plea
agreement in favor of entering a “straight up” guilty plea.
Dickerson sought to appeal the district court’s order denying
relief on his motion and a subsequent order denying
reconsideration. We granted Dickerson a certificate of
appealability and received further briefing on the issue of
counsel’s alleged ineffective assistance in advising Dickerson
to reject the plea offer. ∗ Because we conclude an evidentiary
hearing was warranted, we vacate in part and remand with
instructions to grant Dickerson a hearing on this ineffective
assistance of counsel claim.
Dickerson was charged with conspiracy to distribute
and possess with intent to distribute more than 1000 grams of
heroin (Count One), and attempt to possess with intent to
distribute more than 100 grams of heroin (Count Eight). He
ultimately pleaded guilty without a plea agreement to both
counts. The district court imposed a within-Guidelines sentence
of 262 months’ imprisonment on each count, to be served
∗
We denied a certificate of appealability as to the second
claim Dickerson raised in his § 2255 motion.
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concurrently. On direct appeal, we affirmed Dickerson’s
sentence. United States v. Dickerson, 436 F. App’x 252 (4th
Cir. 2011) (unpublished).
In his § 2255 motion, Dickerson maintains that counsel
advised him to reject the Government’s proffered plea agreement
by which Dickerson would plead guilty to Count One in exchange
for a dismissal of Count Eight, in favor of entering a “straight
up” guilty plea to both counts. Dickerson complains that he
“benefitted nothing by entering such a plea” and that he would
have accepted the plea agreement absent counsel’s
ineffectiveness.
While the district court recognized that the
Government had not proffered Dickerson’s attorney’s affidavit
explaining her reasons for recommending a “straight up” guilty
plea, the district court found it “highly likely” that counsel
believed it was important to avoid the appellate and collateral
attack waiver customarily insisted upon by the Government in the
plea agreement. The court also emphasized that Dickerson could
show no resulting prejudice because under the conduct-based
sentencing scheme, Dickerson’s plea to Count One subsumed the
conduct alleged in Count Eight, as reflected in the concurrent
262-month sentences imposed and, therefore, “[h]is plea to count
eight did not lengthen his term of incarceration by a single
day.”
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To succeed on his ineffective assistance claim,
Dickerson must show that: (1) counsel’s performance 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
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 been accepted by the court, and that “the
conviction or sentence, or both, under the offer’s terms would
have been less severe than under the judgment and sentence that
in fact were imposed.” 132 S. Ct. at 1385.
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. 132 S. Ct. at 1408. Under
Frye, in order to show prejudice from ineffective assistance of
counsel where a plea offer has lapsed or been rejected because
of counsel’s deficient performance, a defendant must demonstrate
a reasonable probability he would have accepted the earlier plea
offer had he been afforded effective assistance of counsel. Id.
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at 1409. Additionally, a defendant must show that “if the
prosecution had the discretion to cancel it or if the trial
court had the discretion to refuse to accept it, there is a
reasonable probability neither the prosecution nor the trial
court would have prevented the offer from being accepted or
implemented.” Id. at 1410.
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.”
§ 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).
In its response, the Government contends, as it did
below, that, by pleading guilty without a plea agreement,
Dickerson preserved all of his appellate rights and all of his
rights to collaterally attack his convictions and sentence.
Arguing that it was objectively reasonable for defense counsel
to recommend this route, the Government asserts that
“[d]eference must be given this strategic choice.” With respect
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to prejudice, the Government asserts that the calculus of the
sentencing was unaffected. Furthermore, while it concedes that
an additional conviction could have collateral consequences,
even where the sentences run concurrently, it argues that
Dickerson cannot show there was a reasonable probability that he
would have accepted the plea offer, thus failing to meet the
required showing of prejudice.
We conclude that the district court abused its
discretion in failing to conduct an evidentiary hearing on
Dickerson’s ineffective assistance of counsel claim. As to
prejudice, we conclude that Dickerson made a colorable showing
that, absent counsel’s advice, he would have accepted a plea
that would have been accepted by the court, and that “the
conviction or sentence, or both, under the offer’s terms would
have been less severe than under the judgment and sentence that
in fact were imposed.” Lafler, 132 S. Ct. at 1385.
With respect to the reasonableness of counsel’s advice
to Dickerson to reject the Government’s plea offer, the district
court was presented with only the Government’s unsworn,
unauthenticated assertion that Dickerson had been offered a plea
agreement that contained a waiver of the right to appeal. The
Government did not present any supporting affidavits. A close
look at the Government’s response indicates that avoiding the
appellate waiver would have been the only strategic reason to
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reject the Government’s offer to plead guilty to Count One.
However, there is nothing in the record to support a finding
that the government conditioned its offer on such a waiver, that
counsel deemed it important in Dickerson’s case to avoid waiver
of the right to appeal, or that counsel’s advice to reject the
offer was on that basis. While counsel may have reasonably
believed that the waiver was reason enough to reject the plea
offer and plead straight up, there is no affidavit from counsel
in the record, and the district court was left to guess at
counsel’s motives and strategy, if any. The district court’s
determination that counsel’s advice to forgo a written plea
agreement was a strategic one is a factual determination
requiring a credibility determination, or at least the receipt
of evidence outside of the present record; thus, the district
court erred in not ordering an evidentiary hearing.
Witherspoon, 231 F.3d at 925-27.
Accordingly, we vacate in part the district court’s
dismissal of Dickerson’s § 2255 motion. We remand with
instructions to grant Dickerson an evidentiary hearing on his
claim that counsel was ineffective in advising him to reject the
Government’s written plea offer to one count in favor of
entering a straight up guilty plea to two counts. We dispense
with oral argument because the facts and legal contentions are
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adequately presented in the materials before this court and
argument would not aid the decisional process.
VACATED IN PART AND REMANDED
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