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Allen v. United States

United States Court of Appeals, Eighth Circuit

April 14, 2017

Glen Ray Allen Movant - Appellant
v.
United States of America Respondent - Appellee

          Submitted: February 10, 2017

          Appeal from United States District Court for the Western District of Arkansas - Hot Springs

          Before SMITH, [1] GRUENDER, and BENTON, Circuit Judges.

          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 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[2] denied the petition without an evidentiary hearing. We granted a 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.

         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 was set 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.[3] On this basis, Janske 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 convicted on count two, Allen would face a mandatory minimum sentence 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 mandatory minimum for 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 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. ...


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