CA6: 2255 petitioner failed to support his IAC claim with facts

Defendant in his § 2255 failed to adequately support his claim that his defense lawyer failed to properly advise him of the quality of his Fourth Amendment claim that was waived in his guilty plea. United States v. Ferguson, 669 F.3d 756, 2012 FED App. 0055P (6th Cir. 2012):

Ferguson argues that the failure of his trial counsel to advise him about the viability of his Fourth Amendment claim when pleading guilty and to preserve the right to appeal the denial of the suppression motion constitutes obviously deficient performance that is apparent on the record. Ferguson bases this argument on his assertion that his suppression challenge is meritorious and dispositive. In short, he argues that the failure of his trial counsel to appreciate the strength of Ferguson’s position on the suppression issue, to preserve it for appeal, and to advise Ferguson of the possibility of entering a conditional plea, constitutes clearly deficient performance resulting in prejudice because in the absence of such alleged errors there is a reasonable probability that Ferguson would not have entered an unconditional guilty plea.

We find the record insufficiently developed to support Ferguson’s claim of ineffective assistance of counsel. The record is devoid of information regarding the discussions Ferguson had with his counsel regarding the plea agreement. There is also scant information in the record to illuminate whether it might have been sound strategy for defense counsel to allow Ferguson to enter an unconditional plea. What the record does indicate is that defense counsel and the government negotiated a plea agreement that significantly reduced Ferguson’s potential sentencing exposure. The maximum sentence for violating 18 U.S.C. § 2252A(a)(5)(B) is ten years’ imprisonment with a possible lifetime term of supervised release. Pursuant to the plea agreement, the Sentencing Guidelines range recommended to the district court based on the stipulated Guideline computations for an adjusted offense level of 17 and criminal history category of I was 24 to 30 months. This range was substantially lower than the recommended Guideline range calculated in the Presentence Investigation Report (“PSR”), which would have exposed Ferguson to a potential sentence of 46 to 57 months. Whether this favorable plea agreement would not have been offered to Ferguson if he had entered a conditional plea is unknown. In light of the limited record on direct appeal, we have “no way of knowing whether a seemingly unusual or misguided action by counsel had a sound strategic motive or was taken because the counsel’s alternatives were even worse.” Massaro, 538 U.S. at 505. Nor can we “ascertain whether the alleged error was prejudicial” without further factual development. Id. Thus, in light of the limited record regarding “the preparation of [Ferguson’s] trial counsel or his communications with [Ferguson] about this … issue,” it is more appropriately raised in the first instance in post-conviction proceedings. See United States v. Bradley, 400 F.3d 459, 461-62 (6th Cir. 2005).