Leon Carmichael, Sr. v. United States (11th Cir. June 2020)

The Federal Docket

Section 2255/Ineffective Assistance of Counsel – Trial counsel’s deficient performance in failing to advise a defendant of potential sentencing exposure, make a plea offer to the government as directed by the defendant, or convey the government’s time-limited plea offer to the defendant may not warrant vacating the defendant’s sentence where the defendant was not prejudiced by the deficient performance based on his refusing two other plea offers.

Leon Carmichael, Sr. was serving a 40-year sentence after a jury convicted him for drug violations and money laundering.  Over the course of the trial and subsequent appeals, Carmichael engaged 11 different attorneys to assist with his defense.

In deciding to plead guilty or go to trial, Carmichael asserted that his counsel failed to 1) explain the weight and extent of government evidence, 2) advise him of the applicable sentence if convicted, 3) pursue plea negotiations, and 4) convey plea offers.

The Court agreed counsel performance was deficient for failing to sufficiently discuss his sentencing exposure to life in prison, pursue Carmichael’s pre-trial direction to renew plea negotiations, and to convey one of the government’s time-limited plea offers to Carmichael. The Court disagreed that Carmichael was prejudiced by his counsel’s failures, however, since he was unable to prove the performance adversely affected the outcome of his plea process given his rejection of two distinct plea offers from the government.

In the first offer, Carmichael was required to provide “super cooperation” including information and testimony leading to indictment and prosecution of others to earn a ten-year sentence.  There was little evidence in the record to indicate Carmichael could both satisfy the § 5K1.1 requirement for downward departure or that he was willing to do so.   He refused a proffer session without a guaranteed sentence and even if he had participated no evidence existed in the record that he could provide substantive assistance to induce the government to offer a cooperation deal.

With the second offer, the government offered twenty-years at the evidentiary hearing and Carmichael rejected it, indicating that he would take his chance on appeal.  Thereafter, he discussed the offer with counsel and decided to stay the course, and only upon hiring another new attorney did he pursue the government’s second offer, two months after it had expired.

The Court held that despite deficient performance by counsel, the defendant was not prejudiced and affirmed the 28 U.S.C. § 2255 motion denying his sentence be vacated.

Appeal from the Middle District of Alabama

Opinion by Proctor, joined by Wilson and Newsom

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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