Short v. United States ( 2006 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 06a0473p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
Petitioner-Appellant, -
RICKY WAYNE SHORT,
-
-
-
No. 05-6520
v.
,
>
UNITED STATES OF AMERICA, -
Respondent-Appellee. -
-
-
N
Appeal from the United States District Court
for the Middle District of Tennessee at Columbia.
No. 02-00062—William J. Haynes, Jr., District Judge.
Argued: October 31, 2006
Decided and Filed: December 28, 2006
Before: SILER, GILMAN, and GRIFFIN, Circuit Judges.
_________________
COUNSEL
ARGUED: Alan G. Kimbrell, Grover, Missouri, for Appellant. S. Delk Kennedy, Jr., ASSISTANT
UNITED STATES ATTORNEY, Nashville, Tennessee, for Appellee. ON BRIEF: Alan G.
Kimbrell, Grover, Missouri, for Appellant. S. Delk Kennedy, Jr., ASSISTANT UNITED STATES
ATTORNEY, Nashville, Tennessee, for Appellee.
_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Ricky Wayne Short, who pled guilty to a federal
drug charge and is currently incarcerated, appeals the denial of his 28 U.S.C. § 2255 motion to
vacate his sentence. His attorney negotiated a plea agreement pursuant to which Short’s indictment
was amended without further action by the grand jury. Short contends that this amounted to
constitutionally ineffective assistance of counsel with respect to both the amendment and the plea
agreement. The amendment increased the quantity of cocaine alleged in Short’s indictment from
500 grams to 5000 grams. Short also argues that the amendment deprived the district court of
jurisdiction and gave rise to other constitutional violations.
In response, the government argues that Short’s attorney rendered effective assistance with
regard to the plea agreement because Short willingly accepted responsibility for the amended drug
charge. The government also asserts that the amendment did not deprive the district court of
1
No. 05-6520 Short v. United States Page 2
jurisdiction, and that Short’s remaining claims are barred by his plea agreement in which he waived
the right to collateral review. For the reasons set forth below, we AFFIRM the judgment of the
district court.
I. BACKGROUND
A. Factual background
In August of 2000, law-enforcement officers associated with the Lawrence County
(Tennessee) Sheriff’s Department executed a search warrant at the residence of Angela Darlene
Williams. Present at the home were Williams and her ex-husband Ricky Wayne Short, both of
whom were found smoking cocaine at the kitchen table. In the course of the ensuing search, the
officers uncovered approximately four kilograms of cocaine in the master bedroom and
approximately one kilogram of cocaine on the kitchen floor, along with other drug paraphernalia.
A subsequent investigation revealed that, prior to the search, Williams and Charles Lee Furk had
traveled to Texas to purchase the cocaine using $115,000 in cash provided by Short. After
purchasing the drugs in Texas, Furk and Williams returned with the cocaine to Williams’s residence
in Tennessee.
Both Williams and Short were arrested at the scene. The report filed by the arresting officers
described the quantity of cocaine found in the residence as “approximately 11 pounds,” an amount
roughly equal to 5 kilograms.
B. Procedural background
A federal grand jury issued a four-count indictment in October of 2000, charging that (1) in
July and August of 2000, both Short and Furk conspired to distribute “five hundred (500) grams”
or more of cocaine; (2) on August 2, 2000, both Short and Furk possessed “five hundred (500)
grams” or more of cocaine with the intent to distribute; (3) on October 12, 2000, Furk possessed “a
quantity” of cocaine with the intent to distribute; and (4) both Short and Furk, if convicted, would
be subject to forfeiture of any real or personal property involved in the commission of the offenses.
Following Short’s arrest, his attorney entered into plea negotiations with the government,
ultimately arriving at a plea agreement. At Short’s change-of-plea hearing before the district court
in February of 2001, the government filed a motion to amend Count One of the indictment, the
conspiracy count. The motion sought to change Count One from charging Short with conspiring to
possess “five hundred (500) grams” or more of cocaine to conspiring to possess “five thousand
(5000) grams” or more of cocaine. The text of the motion explained that this amendment was the
product of “conversations between counsel” and was “appropriate and necessary to accomplish the
negotiated plea agreement to be presented to [the district court].” Only the Assistant U.S. Attorney
signed the motion. But when the court asked whether the defense had any objections to the
amendment, Short’s counsel stated that he did not. The court then orally granted the motion to
amend the indictment and issued a written order to that effect later in the day. Following the
hearing, however, the court commented to counsel for the government that amending the indictment
without seeking reindictment through the grand jury was an atypical procedure.
Under the terms of Short’s plea agreement that he signed at the hearing in open court, Short
pled guilty to Count One as amended and agreed to certain property forfeitures. He also waived
any right to direct or collateral review of his conviction or sentence apart from claims of ineffective
assistance of counsel or prosecutorial misconduct. In exchange, the government agreed to drop
Counts Two and Three of the indictment and to recommend that Short (1) receive a three-level
sentencing reduction due to his acceptance of responsibility, (2) receive care at a medical facility
for an existing shoulder injury, (3) participate in a drug-treatment program, and (4) be incarcerated
in a facility near his home.
No. 05-6520 Short v. United States Page 3
Before accepting Short’s guilty plea, the district court explained to him all of the charges in
the indictment, including the amended 5000 gram quantity charged under Count One. The court
further inquired as to whether Short was competent to enter a plea and whether he was aware of his
right to plead not guilty and proceed to trial. After receiving satisfactory answers, the court
explained that life in prison was the maximum sentence to which Short could be subject, and Short
responded that he understood. The court later asked whether Short was completely satisfied with
his attorney’s performance, and he responded that he was. Having explained the charges and
established Short’s competency, the court asked Short how he wanted to plead. Short responded “I
want to plead guilty.” The court again explained to Short the amended Count One that charged
conspiracy to possess and distribute 5000 grams of cocaine, and asked whether Short understood
what he was charged with. Short again responded that he did. Nothing in the record, however,
indicates that the court specifically informed Short of his right to be reindicted by a grand jury.
The court next questioned Short regarding the circumstances of the drug incident from which
the charges arose. Short explained that he had given $100,000 (not the $115,000 alleged by the
government) to Furk so that Furk and Williams could purchase “four kilos” of cocaine, but that he
had no idea where or how they would acquire the drugs. When asked how much cocaine the pair
had brought back, Short responded “I don’t really know.” The court further inquired why he did not
know, and Short responded “I didn’t weigh it.”
After questioning Short, the district court called F.B.I. Special Agent Utley Noble to give
the government’s statement of the case. Noble testified regarding both the agreement between Short
and Furk to purchase drugs and the execution of the search warrant as described earlier. The record
provides no basis for Noble’s knowledge of these facts, but Short raised no objection to the
testimony on that ground. Noble first testified that the arresting officers discovered “approximately
one” kilogram of cocaine on the kitchen floor and that “approximately four kilograms” of cocaine
were found in the master bedroom. Noble subsequently testified that “Mr. Ferk [sic] purchased in
excess of five kilograms of cocaine” in Texas that he brought back to Tennessee in his truck.
Following Noble’s testimony, the court asked Short whether he took issue with any of Noble’s
assertions. Short initially questioned only the location of Furk’s truck. He then claimed that he did
not recall the kilogram of cocaine allegedly found on the kitchen floor, explaining simply that “I
don’t remember it being on the floor.”
Having heard from the witnesses and accepted Short’s plea, the district court ultimately
sentenced Short to 120 months in prison, followed by five years of supervised release. The court
arrived at this sentence by applying the mandatory minimum required under 21 U.S.C.
§ 841(b)(1)(A) where the drug quantity involved is 5000 grams or more. Given Short’s criminal
history category of I and the three-level offense reduction recommended by the plea agreement, the
Sentencing Guidelines range for Short’s conviction under the amended Count One was between 87
and 108 months of imprisonment. But because this Guidelines range fell below the statutory
mandatory minimum of 120 months that the amended charge required, Short’s plea agreement
provided for an alternate sentence of 120 months, which the district court ultimately imposed.
Short did not directly appeal either his conviction or his sentence. He filed the present
motion to vacate his sentence pursuant to 28 U.S.C. § 2255 in June of 2002. Short argued that
(1) his counsel rendered ineffective assistance with regard to both the amendment of his indictment
and his plea agreement, and (2) the amendment of the indictment deprived the district court of
jurisdiction and violated Short’s constitutional rights. The district court denied the petition on the
grounds that Short had not produced any evidence of his counsel’s ineffectiveness, that he had
otherwise knowingly and voluntarily waived his right to collateral review under his plea agreement,
and that there was an adequate factual basis for his guilty plea. Short then filed a timely notice of
appeal. The district court issued a certificate of appealability as to all of the claims raised by Short.
No. 05-6520 Short v. United States Page 4
II. ANALYSIS
A. Standard of review and legal framework
A prisoner seeking relief under 28 U.S.C. § 2255 must allege either: “(1) an error of
constitutional magnitude; (2) a sentence imposed outside the statutory limits; or (3) an error of fact
or law that was so fundamental as to render the entire proceeding invalid.” Mallett v. United States,
334 F.3d 491, 496-97 (6th Cir. 2003) (citation and quotation marks omitted). Short directs his
claims to the first and third categories. He alleges both that his Sixth Amendment right to effective
assistance of counsel was violated and that the amendment of his indictment was invalid because
it violated his Fifth Amendment right to indictment by a grand jury.
Short waived his right to trial by jury and signed a plea agreement in which he waived his
right to collateral and direct review except with regard to claims of ineffective assistance of counsel
or prosecutorial misconduct. This court generally enforces such waiver agreements. Davila v.
United States, 258 F.3d 448, 450 (6th Cir. 2001). Short must establish his ineffective assistance of
counsel claim by a preponderance of the evidence. See Pough v. United States, 442 F.3d 959, 964
(6th Cir. 2006). Short’s additional argument regarding subject matter jurisdiction is also reviewable
because subject matter jurisdiction is not subject to waiver. See United States v. Titterington, 374
F.3d 453, 459 (6th Cir. 2004).
The district court denied Short’s § 2255 motion. We review a district court’s denial of a
federal prisoner’s § 2255 motion to vacate, set aside, or correct a sentence de novo, but will overturn
its factual findings only if they are clearly erroneous. Moss v. United States, 323 F.3d 445, 454 (6th
Cir. 2003). A claim of ineffective assistance of counsel presents a mixed question of law and fact
that we similarly review de novo. Mallett, 334 F.3d at 497. De novo review also is also accorded
claims regarding subject matter jurisdiction. Cardinal v. United States, 954 F.2d 359, 362 (6th Cir.
1992).
B. The district court correctly determined that Short’s counsel provided
constitutionally effective assistance
To establish ineffective assistance of counsel, Short must prove (1) that his trial counsel’s
representation “fell below an objective standard of reasonableness,” and (2) that “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland v. Washington, 466 U.S. 668, 687-94 (1984). The Supreme
Court subsequently modified Strickland’s prejudice prong in the case of a defendant who pleads
guilty, holding that such a defendant “must show that there is a reasonable probability that, but for
counsel’s errors, he would not have pleaded guilty and instead would have insisted on going to
trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
In evaluating an ineffective-assistance-of-counsel claim, we “strongly presume[]” counsel
to have “rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Strickland, 466 U.S. at 690. As a result, defendants alleging
ineffective assistance of counsel bear “a heavy burden of proof.” Whiting v. Burt, 395 F.3d 602, 617
(6th Cir. 2005). A defendant challenging his attorney’s conduct during plea bargaining “must show
that counsel did not attempt to learn the facts of the case and failed to make a good-faith estimate
of a likely sentence. He must also show that his lawyer’s deficiency was a decisive factor in his
decision to plead guilty.” United States v. Cieslowski, 410 F.3d 353, 358-59 (7th Cir. 2005).
No. 05-6520 Short v. United States Page 5
1. Short’s failure to request an evidentiary hearing prevents a meaningful
assessment of his attorney’s conduct
Short makes no claim that his attorney advised him to lie to the court or to plead guilty to
a charge that he did not commit, or that his attorney failed to advise him of the consequences of
accepting the government’s plea offer in comparison to the alternatives. Nor does Short allege that
his attorney failed to consult him regarding the amendment to the indictment. Rather, Short simply
asserts that the evidence does not clearly show that he was, in fact, responsible for five kilograms
of cocaine. Short thereby implies that his attorney unreasonably advised him to plead guilty to that
charge without making an attempt to learn the true facts.
The limited record contains no evidence regarding what Short’s attorney discovered
concerning the pertinent facts, or how he specifically advised Short with respect to the plea
negotiations. Short did not request an evidentiary hearing before the district court, which would
have shed light on these issues, but instead chose to rely on the plea-hearing transcripts as the only
evidence to support his § 2255 motion.
Any contention of an inadequate investigation is strongly undermined by Short’s own plea
colloquy in which he openly accepted responsibility for 5000 grams of cocaine and raised no
objection to Agent Noble’s characterization of the quantity that Short conspired to purchase as “in
excess of five kilograms.” Furthermore, Short testified that he had no issues regarding his counsel’s
performance. Given the strong presumption in favor of an attorney’s competence, Short’s own
admission of the drug quantity, and the testimony of the government witness, Short has not
demonstrated by a preponderance of the evidence that his attorney either ignored or failed learn the
facts of his case before advising him to plead guilty.
2. Short’s per se ineffective-assistance argument fails
Rather than stating specific facts regarding his attorney’s knowledge or the advice he
provided, Short claims to have stated a “prima facie” case for ineffective assistance based on the
allegedly unfavorable terms of the plea deal that his attorney negotiated. He argues that because his
attorney advised him to accept a plea offer that required him to plead guilty to a more severe charge
than that for which he was indicted, and because the three-level reduction offered by the government
did not in fact reduce his sentence due to the mandatory minimum prescribed by statute, his
attorney’s assistance was per se ineffective. This argument requires analysis under the second prong
of Strickland, which addresses prejudice to the defendant. 466 U.S. at 694.
To demonstrate prejudice, Short must establish “that there is a reasonable probability that,
but for [his] counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694. The Supreme Court has held that under certain egregious
circumstances, however, a defendant can assert a “per se” ineffective-assistance claim in which the
court will presume prejudice. Hunt v. Mitchell, 261 F.3d 575, 582 (6th Cir. 2001) (citing United
States v. Cronic, 466 U.S. 648, 658-59 (1984)). Those circumstances include the actual or
constructive denial of assistance “when counsel was either totally absent, or prevented from assisting
the accused during a critical stage of the proceeding.” Cronic, 466 U.S. at 659 n.25. In addition,
if counsel is burdened by an actual conflict of interest, then a more limited presumption of prejudice
applies. Strickland, 466 U.S. at 692. The Court in Cronic noted that “[a]part from circumstances
of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation
unless the accused can show how specific errors of counsel undermined the reliability of the finding
of guilt.” Id. at 659 n.26.
Short does not argue that his attorney was completely absent or that his attorney was
prevented from assisting Short during a critical stage of the proceeding. Furthermore, no authority
supports the argument that the acceptance of an allegedly unfavorable plea bargain creates an
No. 05-6520 Short v. United States Page 6
additional category of per se ineffective assistance that would relieve him of the burden of
demonstrating actual prejudice. See Craker v. McCotter, 805 F.2d 538, 542-43 (5th Cir. 1986)
(holding that a defendant who, on the advice of his attorney, accepted a 20-year sentence as part of
a guilty plea for passing $20 bad check, but who did not allege that he would otherwise have
proceeded to trial, did not establish a per se ineffective assistance claim).
Instead, Short raises an alternative argument that the negotiated amendment of his indictment
in and of itself violated his Fifth Amendment rights, creating per se prejudice. The Fifth
Amendment provides in pertinent part that “[n]o person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” The Supreme
Court has recognized that nonconsensual amendments to an indictment other than by a grand jury
correspondingly implicate Fifth Amendment rights where the amendment alters the offense charged.
Stirone v. United States, 361 U.S. 212, 217-218 (1960) (setting aside a conviction because of the
trial court’s constructive amendment of the indictment). The government does not dispute that
Short’s indictment was amended by the district court, not by the grand jury.
Certain types of changes, however, fall outside of the prohibition against amending an
indictment other than by a grand jury. These include changes that are merely matters of form,
United States v. McGrath, 558 F.2d 1102, 1105 (2d Cir. 1977), and those that solely serve to narrow
the scope of the indictment. United States v. Miller, 471 U.S. 130, 145 (1985). As a third exception,
the district court in this case certified for appeal the question of whether a defendant can waive his
right to reindictment by a grand jury.
Initially, the government argues that it intended from the outset to charge Short with
possessing 5000 grams, and that the amendment thus fell under the first exception as simply the
correction of a typographical error. The cases cited by the government in this regard, however,
involve more innocuous corrections such as altering a defendant’s name, United States v. McGrath,
558 F.2d 1102, 1104-05 (2d Cir. 1977), or striking a clerical error as surplusage, United States v.
Blum, 46 F.2d 850, 851 (6th Cir. 1931). Although we doubt whether the amendment in this
case—which materially increased the severity of the charge—fits within this narrow exception, we
need not decide the issue because we instead rest our decision on the third exception: Short’s waiver
of his right to be reindicted by a grand jury.
Short invokes substantial historical caselaw for the proposition that “[o]rdinarily, an
indictment may be amended only by subsequent action of the grand jury.” United States v.
Pandilidis, 524 F.2d 644, 647 (6th Cir. 1975) (citations omitted). This assertion, however, does not
address the precise issue in the present case, which is whether a criminal defendant can effectively
waive his right to reindictment by a grand jury. Short addresses the issue of waiver by asserting that
he “did not make any statement consenting or agreeing to such an increase [in the indictment charge]
or waiv[e] his right to have the matter re[-]presented to a grand jury.”
Federal courts in the past did not permit indictments to be amended even with a defendant’s
consent. See B.H. Glenn & C.C. Marvel, Annotation, Power of Court to Make or Permit
Amendment of Indictment, 17 A.L.R. 3d 1181 § 5 (1968) (“The defendant’s consent or acquiescence
has been held or recognized not to affect the application of the federal rule that the court is without
authority to amend the body of an indictment.”). The basis for this rule, however, has been eroded
by the advent of modern waiver principles, the enactment of the Federal Rules of Criminal
Procedure, and most recently by the Supreme Court’s decision in United States v. Cotton, 535 U.S.
625, 630 (2002) (holding that “defects in an indictment do not deprive a court of its power to
adjudicate a case.”)
Subsections (a) and (b) of Rule 7 of the Federal Rules of Criminal Procedure, enacted in
1944, provide that a criminal defendant may waive his right to indictment by a grand jury for
No. 05-6520 Short v. United States Page 7
noncapital offenses. See, e.g., Goode v. United States, 305 F.3d 378, 386 (6th Cir. 2002) (holding
that the failure of the indictment to specify a drug quantity implicated a “personal right” that could
be waived). In addition, Rule 7(d) permits the court, on motion by the defendant, to strike portions
of an indictment as surplusage. In so moving, the defendant is deemed to have waived his right to
reindictment to the extent of eliminating such surplusage. United States v. Johnson, 585 F. Supp.
80, 81 n.1 (M.D. Tenn. 1984). Furthermore, other significant rights conferred by the Fifth and Sixth
Amendments can be waived by criminal defendants. See, e.g., Patton v. United States, 281 U.S.
276, 312 (1930) (trial by jury); Johnson v. Zerbst, 304 U.S. 458, 465 (1938) (right of counsel);
Trono v. United States, 199 U.S. 521, 534 (1905) (protection against double jeopardy).
Several courts and commentators have suggested that the principle that a defendant cannot
affirmatively waive his right to reindictment by a grand jury is indefensible in light of existing
waiver law. See United States v. Sazenski, 833 F.2d 741, 743-44 (8th Cir. 1987) (noting criticism
of the rule prohibiting defendants from waiving reindictment by a grand jury, but deciding that the
amendment at issue was merely a matter of form); United States v. Milestone, 626 F.2d 264, 266-67
& n.2 (3d Cir. 1980) (characterizing the continued viability of the rule prohibiting waiver as
“questionable,” but determining that the amendment at issue simply deleted surplusage); 1 Charles
Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 127 (3d ed. 1999) (“[T]here are
occasional statements in the cases that an indictment cannot be amended even with the consent of
the defendant. If taken literally these would be indefensible.”)
Furthermore, any lingering justification for prohibiting waiver on the theory that indictment
issues are jurisdictional and thus beyond the power of the court was eliminated by the Supreme
Court’s decision in United States v. Cotton, which held that a defect in the indictment was not
jurisdictional. 535 U.S. at 630-31. The Court in Cotton, however, did not specifically address the
issue of waiver except to state that
Bain [121 U.S. 1 (1887)] has been cited in later cases . . . for the proposition that “an
indictment may not be amended except by resubmission to the grand jury, unless the
change is merely a matter of form.” But in each of these cases, proper objection had
been made in the District Court to the sufficiency of the indictment. We need not
retreat from this settled proposition of law decided in Bain to say that analysis of that
issue in terms of “jurisdiction” was mistaken . . . .
Id. at 630 (citations omitted).
In United States v. Dusenbery, 78 F. App’x 443, 447 (6th Cir. 2003), this court interpreted
the Supreme Court’s jurisdictional holding in Cotton to mean that a defendant’s “right to an
indictment, or reindictment, and to an arraignment—may be waived.” See also United States v.
Gaudet, 81 F.3d 585, 590 (5th Cir. 1996) (accord) (citing Ornelas v. United States, 840 F.2d 890,
892 (11th Cir.1988)). In light of this modern shift in the procedural rules and recent caselaw, we
conclude that a defendant may waive his right to reindictment by a grand jury. We confine this
holding, however, to the present circumstance concerning a guilty plea to the amended indictment,
and do not address the alternate scenario of a constructive amendment effected during the course
of a trial.
We next consider whether Short’s plea colloquy effected a valid waiver of his right to
reindictment. The waiver of any constitutional right must be both knowing and voluntary. See, e.g.,
Martin v. Rose, 744 F.2d 1245, 1251 (6th Cir. 1984) (citing Johnson v. Zerbst, 304 U.S. 458, 464
(1938)). Rule 7(b) of the Federal Rules of Criminal Procedure further provides that the waiver of
a defendant’s right to indictment by a grand jury must be made by “the defendant—in open court
and after being advised of the nature of the charge and of the defendant's rights.” Under Rule 7(b),
however, courts have found that a waiver can be implied by a defendant’s guilty-plea colloquy in
No. 05-6520 Short v. United States Page 8
open court. Gaudet, 81 F.3d at 590-91(holding that where a valid indictment has been obtained, “a
defendant's decision to plead to a superseding bill of information includes an implicit waiver of
indictment that satisfies rule 7(b)”); Ornelas, 840 F.2d at 892 (same); United States v. Travis, 735
F.2d 1129, 1131-32 (9th Cir. 1984) (same).
The record reflects that the district court asked Short’s counsel, in the presence of Short and
in open court, whether there was any objection to the amendment of Short’s indictment. Short’s
counsel replied that there was not, and Short himself raised no objection. Furthermore, the court
repeatedly explained to Short during the plea colloquy the amended charge to which he was pleading
guilty and the penalty it carried. Thus, as the court in Ornelas explained, the district court’s failure
to specifically inform Short of his right to reindictment was, at most, only a “technical violation of
Rule 7(b).” See Ornelas, 840 F.2d at 892.
The district court thoroughly explained the amended charge to Short before accepting his
guilty plea. It also inquired whether he had any objection to the amendment, which he did not.
Thus, any technical error related to the amendment of his indictment did not amount to per se
prejudice. See id. (holding that a technical indictment violation “is not an error that warrants relief
pursuant to 28 U.S.C. § 2255”). Instead, the amended indictment negotiated by Short’s attorney
secured for Short precisely the 10-year sentence that he was willing to accept.
3. Short cannot demonstrate prejudice under the Strickland/Hill standard
The Supreme Court has developed a specific standard that defendants who plead guilty must
meet to demonstrate prejudice with respect to their representation by counsel. Such a defendant
“must show that there is a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and instead would have insisted on going to trial.” Hill, 474 U.S. at 59. Conversely,
in the context of a rejected plea offer, the defendant must show a “reasonable probability that, but
for the incompetence of counsel, he would have accepted” the plea. Turner v. State, 858 F.2d 1201,
1206 (6th Cir. 1988) (vacated on other grounds).
Short does not argue that there is a reasonable probability that he would have rejected the
government’s plea offer and gone to trial. He instead contends that, but for his counsel’s ineffective
assistance, he would have rejected the plea offer and obtained more favorable terms by pleading
guilty to all of the charges in the original indictment. This allegation, however, falls short of the Hill
standard. See Hunter v. United States, 160 F.3d 1109, 1115 (6th Cir. 1998) (holding that the
defendant could not “satisfy the prejudice prong in the absence of any statement that he is actually
innocent, or would have gone to trial if his attorney's performance had been different”). Prior to
Hunter, one unpublished decision of this court granted a defendant’s request for an evidentiary
hearing to establish whether his attorney’s actual conflict of interest prejudiced him by adversely
affecting the terms and conditions of the plea and sentence he accepted. Newman v. United States,
No. 96-6326, 1998 WL 553048, at *3 (6th Cir. August 19, 1998). Short, however, asserts no such
conflict of interest here, nor did he request an evidentiary hearing.
This court’s holding in Hunter is directly on point. Like Short, the defendant in Hunter
claimed that, with competent counsel, he would have pled guilty to possession of a lower quantity
of drugs than he actually admitted to. Hunter, 160 F.3d at 1115. The only relevant distinction
between Short’s claim and the claim in Hunter is that the allegedly bad deal that Short accepted
included an agreement to amend his indictment to charge a more severe offense. This difference,
however, does not distinguish Hunter in any meaningful way. In both Hunter and in the present
case, the petitioner’s claim of prejudice rests upon an assertion that he wound up with a less
favorable plea or sentence than he otherwise would have accepted with the advice of competent
counsel. Such a claim is insufficient to establish actual prejudice. See Hill, 474 U.S. at 59.
No. 05-6520 Short v. United States Page 9
The rationale for finding no prejudice is bolstered by further considering Short’s argument
that his proposed alternative strategy of pleading guilty to the original charge would have benefitted
him. Short argues that, by pleading guilty to the original indictment, he could have taken advantage
of the 87-108 month Guidelines range that would have applied but for the 120-month mandatory
minimum required by the amended indictment. But this requires us to speculate as to whether the
government would have simply brought a superceding indictment had Short not agreed to the
amendment of the original indictment. The government, after all, contends that the “500 grams”
number was simply a typographical error. Furthermore, if Short had pled guilty to the original
charge but still admitted to possessing five kilograms of cocaine, he could have been subject to a
Guidelines sentence between 97 and 121 months of imprisonment if the government had
recommended only a two-point reduction for acceptance of responsibility under U.S.S.G. §§ 2D1.1
and 5A. Under the Hill standard, ineffective assistance claims do not turn on such speculative
considerations.
We conclude that Short has not adequately established his ineffective-assistance-of-counsel
claim with respect to either Strickland prong. In light of the fact that (1) Short did not request an
evidentiary hearing and alleges no concrete facts as to his counsel’s knowledge or advice, (2) Short’s
per se ineffective-assistance arguments are unavailing, and (3) Short fails to allege that, with
competent counsel, he would have proceeded to trial, Short’s ineffective-assistance-of-counsel claim
fails on the merits.
C. The amendment of Short’s indictment did not deprive the district court of
subject matter jurisdiction
In this collateral proceeding, Short faces substantial procedural barriers stemming both from
the written waiver of his right to collateral review in his plea agreement and from his failure to raise
any such claims at trial. One of Short’s claims, however, directly challenges the district court’s
jurisdiction and is therefore reviewable. See United States v. Titterington, 374 F.3d 453, 459 (6th
Cir. 2004) (citing United States v. Cotton, 535 U.S. 625, 630 (2002), for the principle that
“subject-matter jurisdiction . . . can never be forfeited or waived”).
Short asserts that the allegedly improper amendment of his indictment rendered it void, and
thus stripped the district court of its jurisdiction to sentence Short under the amended indictment.
The Supreme Court, however, specifically rejected a similar argument in Cotton, 535 U.S. at 630,
holding that claims of “defects in an indictment do not deprive a court of its power to adjudicate a
case.” Cotton thus made clear that, whatever the effect of a defective indictment, it does not deprive
the district court of subject matter jurisdiction. Consequently, Short’s jurisdictional argument fails.
D. Short waived his remaining arguments through his plea agreement
Short attempts to raise additional constitutional claims arising from his plea and sentencing
apart from his ineffective assistance and jurisdictional arguments. His plea agreement, however,
contained a waiver provision that states:
The defendant knowingly waives the right to challenge the sentence imposed and the
manner in which is was determined in any collateral attack, including, but not limited
to, a motion brought pursuant to 28 U.S.C. § 2255, except for claims of ineffective
assistance of counsel or prosecutorial misconduct.
This court has held that “plea-agreement waivers of § 2255 rights are generally enforceable.”
Davila v. United States, 258 F.3d 448, 450 (6th Cir. 2001). Consequently, Short has waived his
right to pursue these additional claims in a collateral proceeding under § 2255.
No. 05-6520 Short v. United States Page 10
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district court.