MARTIN REIDINGER, District Judge.
On the evening of May 17, 2010, the Petitioner James Ernest Lespier was at his home on the Cherokee Indian Reservation with the victim, Mandi Smith ("Smith"), and their three-year-old son. [Trial Transcript
After securing the Petitioner, officers from the Cherokee Police Department went inside the Petitioner's home, where they saw Smith's body, clothed only in her panties, a bra, and socks, one of which was rolled down off of her heel, lying face-up on the floor. [Trial Tr. at 191, 202]. Smith had blood on and around her head, on the front of her body, and on her back. [
On the seat of a sofa immediately beside Smith's body, officers found a double-barreled shotgun with what appeared to be a fresh crack in the wooden stock. [Trial Tr. at 201, 209, 369, 395, 559-60]. When an agent attempted to open the shotgun to clear it of any ammunition, a five-inch piece of wood from the stock broke off. [
Upon examination of Smith's body, the paramedics and officers found a single gunshot wound on the back of her head, near her neck and to the left of center. [Trial Tr. at 282, 394]. A firearms expert testified that Smith was shot by a revolver, and that at the time of the shot, the muzzle of the revolver was between five and fifteen centimeters from Smith's skin. [
Dr. John Davis, the pathologist who conducted Smith's autopsy, testified that because Smith's heart stopped beating immediately, any blood would have drained out only by gravity, not through any spurting or pumping. [Trial Tr. at 641-42, 679]. Dr. Davis testified that someone attempting to perform CPR on Smith would not have become covered with blood — as the Petitioner was — explaining that there was no source of bleeding on the front of her body. [
Dr. Davis calculated that the shot that killed Smith was shot from behind her head, traveling in a slightly left to right angle (10 degrees) and in a slightly upward angle (30 degrees). [Trial Tr. at 632, 665-66]. In addition to the gunshot wound, Smith had what appeared to be fresh abrasions caused by linear abrasive material on the inside of her right forearm, and a "significant localized hematoma" on the top of her head that extended to the surface of her skull. [
On June 1, 2010, the Petitioner was charged in a Bill of Indictment with second-degree murder, in violation of 18 U.S.C. §§ 1111 and 1153 (Count One), and with the use of a firearm during and in relation to a crime of violence, namely murder, in violation of 18 U.S.C. § 924(c)(1)(A)(iii) and (j)(1) (Count Two). [Criminal Case No. 2:10-cr-00009-MR-DLH ("CR"), Doc. 5: Bill of Indictment]. Fredilyn Sison of the Federal Defenders of Western North Carolina was appointed to represent the Petitioner.
On November 3, 2010, the parties filed a signed Plea Agreement, pursuant to which the Petitioner agreed to plead guilty to Count One and the Government agreed to dismiss Count Two at the appropriate time. [CR Doc. 13: Plea Agreement]. A Rule 11 hearing was scheduled to take place on November 10, 2010. At that time, however, Ms. Sison appeared with the Petitioner and advised the Magistrate Judge that the Petitioner's family had retained attorney Russell McLean to take over the case. Ms. Sison therefore asked that the Magistrate Judge "strike the Rule 11 hearing from the calendar." [CR Doc. 134 at 3: Rule 11 Transcript]. Mr. McLean confirmed that he and attorney Brad Ferguson had been retained to represent the Petitioner. [
On November 19, 2010, the parties appeared before the Magistrate Judge for a status hearing. Noting that Mr. McLean and Mr. Ferguson had filed notices of appearance, the Magistrate Judge granted Ms. Sison's motion to withdraw. [CR Doc. 135 at 4: Status Hearing Transcript]. Mr. McLean then advised the Magistrate Judge that the Petitioner "desire[d] to withdraw his plea proposal" and proceed to trial. [
On December 7, 2010, the grand jury returned a Superseding Bill of Indictment, charging the Petitioner with first-degree murder, in violation of 18 U.S.C. §§ 1111 and 1153, and with the use of a firearm during and in relation to a crime of violence, namely murder, in violation of 18 U.S.C. §§ 924(c)(1)(A)(iii) and 924(j)(1). [CR Doc. 20: Superseding Bill of Indictment]. Significantly, although the Petitioner had withdrawn his assent to the Plea Agreement and was now charged with a more serious offense, the Government's previous plea offer of a plea to second-degree murder and dismissal of the § 924(c) count remained on the table and was never rescinded. [Evidentiary Hearing Transcript
The case proceeded to a jury trial beginning on May 31, 2011. During the charge conference, and in response to the Government's agreement with the Court's proposed instructions that the jury should be instructed as to both first- and second-degree murder, defense counsel stated that the Petitioner was not "asking for second degree" and that the Petitioner objected to the Government's attempt "to try to change the rules now that they've indicted [the Petitioner] on first degree." [Trial Tr. at 1259]. When the Court asked defense counsel to clarify whether the Petitioner wanted the case "to go to the jury on first degree and only first degree," defense counsel responded, "[t]hey charged him, we're standing trial for that, and that's what we want." [
On June 8, 2011, the jury found the Petitioner guilty of both first-degree murder and using a firearm during and in relation to a murder. [CR Doc. 86: Verdict]. The Court sentenced the Petitioner to a term of life imprisonment as to the first-degree murder offense and to a consecutive term of life imprisonment as to the firearm offense. [CR Doc. 99: Judgment].
The Petitioner appealed, challenging the sufficiency of the evidence against him as well as certain evidentiary rulings and arguing that the Court erred in failing to instruct the jury on the lesser-included offense of second-degree murder. The Fourth Circuit affirmed this Court's judgment, holding that the jury's verdict was supported by sufficient evidence and that this Court acted within its discretion in making the challenged evidentiary rulings.
On January 12, 2015, the Petitioner, through attorney David Belser, filed the present motion to vacate pursuant to 28 U.S.C. § 2255. [CV Doc. 1]. In his motion, the Petitioner asserts three claims of ineffective assistance of counsel against Mr. McLean and Mr. Ferguson. In Ground One, the Petitioner contends that counsel rendered ineffective assistance by advising the Petitioner to rescind his acceptance of the plea offer to second-degree murder without counsel having fully reviewed the discovery or investigated the matter and without advising the Petitioner that the Government could charge him with first-degree murder. [
In support of his motion, the Petitioner submitted the Affidavit of his sister, Ida Lespier. Ms. Lespier states in her Affidavit that after reviewing the discovery and interviewing witnesses, Ms. Sison had advised the Petitioner to plead guilty to second-degree murder. [CV Doc. 1-4 at ¶ 5: I. Lespier Aff.]. She further states that Ms. Sison had estimated that the Petitioner would likely receive a guidelines sentence of 14 to 18 years, and that he would serve approximately 85% of that sentence. [
Ms. Lespier states that shortly before the Petitioner's Rule 11 hearing, she and her mother met with Mr. McLean to seek a second opinion regarding the Petitioner's case. [CV Doc. 1-4 at ¶ 3: I. Lespier Aff.]. After listening to Ms. Lespier's description of the case, Mr. McLean advised her that "he could win the case," and that he kept saying, "They ain't got nothing on him." [
As for Ms. Sison's estimated calculation of the likely sentence, Ms. Lespier states in her Affidavit that Mr. McLean said "Ms. Sison had lied and that [the Petitioner] would have to do all of [a] fourteen year sentence or whatever sentence he received." [
The Government filed a Response opposing the Petitioner's motion. [CV Doc. 9]. In support of its Response, the Government submitted the Affidavit of Mr. McLean. In his Affidavit, Mr. McLean refutes Ms. Lespier's Affidavit, denying that he made any such statements to the Petitioner's family. Rather, he states that he has "always told any client, including [the Petitioner] that I could only do my best for him." [CV Doc. 9-1 at ¶ 8: McLean Aff.]. Mr. McLean further denied advising the Petitioner to reject any plea. [
The Court conducted an evidentiary hearing on the Petitioner's § 2255 motion on October 23, 2015. At this hearing, Mr. McLean testified he first learned of the Petitioner's case from Mr. Ferguson, who called him and said that he wanted Mr. McLean to look at a case with him. [T. 73]. Thereafter, Mr. McLean met with the Petitioner's mother, Sherry Hornbuckle, on November 9, 2010, for approximately 30 minutes. [
[T. 75]. Based on what he understood from the Petitioner's mother (who was not present at the time of the offense), Mr. McLean agreed to represent the Petitioner along with Mr. Ferguson. [
The Petitioner spoke to Mr. McLean for approximately five minutes on the day of his Rule 11 hearing in the holding cell of the federal courthouse. At that time, Mr. McLean advised the Petitioner that he would likely serve a full 18 years
Mr. McLean testified that he did not discuss the specifics of the case with the Petitioner, but rather just asked for his version of what happened. [T. 77]. After Petitioner recounted his version of the events, Mr. McLean was satisfied that "it kind of dovetailed with what his mama said," so he decided to represent him.
The Petitioner testified that based on Mr. McLean's advice, and specifically Mr. McLean's opinion that there was "no way" the Government could obtain a conviction for second degree murder, the Petitioner decided to withdraw his plea agreement. [T. 70]. At the time, the Petitioner was under the impression that he was facing at most a term of imprisonment of 25 years. [T. 28, 34]. In deciding to contest the murder charge instead of pleading guilty, he "remembered saying so what's seven more years on top of 18?" [T. 28].
It is undisputed that Mr. McLean and Mr. Ferguson did not meet with the Petitioner at any time between the canceled Rule 11 hearing on November 10, 2010 and the hearing at which the Petitioner withdrew his plea on November 19, 2010. [Doc. 78-79]. Further, prior to the withdrawal of the plea agreement, Mr. McLean never reviewed any of the discovery made available by the Government. [T. 90]. Mr. McLean never advised the Petitioner that if he withdrew his plea, he could be charged with first-degree murder, which carried a mandatory sentence of life imprisonment. [T. 18, 91]. He also never advised the Petitioner that if he were convicted of the firearms charge, he could also receive a consecutive sentence of up to life imprisonment. [T. 19, 65]. In fact, Mr. McLean testified that at the time of the events in question, he was not aware that the firearms charge carried the potential for a life sentence. [T. 87-88]. Rather, he thought a conviction for the firearms offense would simply result in a "five year tack on,"
The Petitioner testified that, had he been informed that he could be charged with first-degree murder and, if convicted, would receive a sentence of life imprisonment, he would have not withdrawn his assent to the Plea Agreement. [T. 24-25, 26-27]. The Petitioner further testified that had he been informed that he could receive a sentence of life in prison on the firearms charge alone, he would have persisted in his plea to second-degree murder pursuant to his written agreement, which provided for the dismissal of the firearms charge. [T. 27].
The Petitioner further testified that he was not aware that the Government's plea offer remained outstanding despite the withdrawal of his assent to the Plea Agreement and the filing of the Superseding Bill of Indictment. Specifically, the Petitioner testified that when Ms. Sison asked to "strike" the Rule 11 hearing, the Petitioner assumed that this meant "that was it": that the plea offer was off the table, and that he was going to trial. [T. 43, 69]. Mr. McLean admittedly never advised the Petitioner that the plea offered by the Government was still open, even after the Petitioner was charged with first-degree murder. [T. 20, 92].
In February 2011, Mr. McLean and Mr. Ferguson met with AUSA Don Gast. At that meeting, Mr. McLean offered a plea to involuntary manslaughter, which the Government rejected. [T. 82, 102]. Mr. McLean could not recall if the Government offered any other type of plea at that time. [T. 83]. Mr. Ferguson recalled, however, that the Government verbally re-offered the plea to second-degree murder during that meeting. [T. 102]. Additionally, Mr. Ferguson testified that on February 23, 2011, he received an e-mail containing a written proposed plea agreement to second-degree murder. [T. 102-03]. Mr. McLean acknowledged that the Government e-mailed him the renewed plea agreement, but testified that he did not recall ever reading it:
[T. 92]. Mr. McLean could not recall if at any time prior to trial the Petitioner asked about the possibility of any sort of plea. [T. 83]. When asked whether the Petitioner indicated any unwillingness to plead and instead go to trial to "fight this charge," Mr. McLean testified as follows:
[T. 83-84].
For his part, Mr. Ferguson testified that he never discussed with the Petitioner the possibility that he could still plead to second-degree murder, although it was Mr. Ferguson's understanding that the second-degree murder plea offer had never been revoked. [T. 103, 105]. Mr. Ferguson did not recall having any substantive conversations with the Petitioner regarding likely sentences or plea offers, explaining that he "left what [he] considered to be major strategic information and/or discussions to be had between [Mr. McLean] and Mr. Lespier." [T. 101].
The Government does not dispute that the offer of a plea to second-degree murder and dismissal of the firearms charge remained available to the Petitioner, and that a formal plea agreement to that effect, identical to the one the Petitioner signed but later rescinded, was forwarded to the Petitioner's new counsel with only the names of counsel having been changed. [
As directed by the Court, the parties filed supplemental briefs following the evidentiary hearing. [Docs. 17, 20]. In his post-hearing brief, the Petitioner recasts his grounds for relief as follows. First, the Petitioner contends that counsel rendered ineffective assistance by allowing him to withdraw his assent to the Plea Agreement without first advising the Petitioner that he could later be indicted for first-degree murder. Second, the Petitioner contends that counsel rendered ineffective assistance by allowing him to withdraw his assent to a plea to second-degree murder without explaining to him he could still receive a sentence of life in prison if convicted of using a gun in the commission of a murder (a charge that would have been dismissed as part of the Plea Agreement) and without first reviewing the discovery and other evidence in this matter. Third, the Petitioner contends that he received ineffective assistance because counsel failed to advise him that the Government's plea offer remained available even after the Superseding Bill of Indictment charging first-degree murder had been returned. [Doc. 17]. In response to the Petitioner's new contentions, the Government maintains that the Petitioner has failed to carry his burden of demonstrating deficient performance by counsel or that he suffered any prejudice as a result of such performance. [Doc. 20].
The Sixth Amendment to the United States Constitution guarantees criminal defendants the right to effective assistance of counsel.
To establish deficient performance by counsel, a petitioner must overcome the "strong presumption that counsel's conduct [fell] within the wide range of reasonable professional assistance."
The Supreme Court has long recognized that the right to effective assistance of counsel extends to the plea negotiation process.
The Court first turns to the Petitioner's claim that counsel was ineffective in advising him regarding the withdrawal of his assent to the Plea Agreement. The Supreme Court has acknowledged that defining the duties and responsibilities of defense counsel in plea negotiations is "a difficult question."
ABA Standards for Criminal Justice Pleas of Guilty, Standard 14-3.2(b) (3d ed. 1999).
Here, Mr. McLean admits, and the Court so finds, that he made no meaningful investigation or study of the case prior to advising the Petitioner regarding the withdrawal of his assent to the Plea Agreement. This was a murder case based primarily on circumstantial evidence. To prove its case, the Government had to rely on inferential evidence, such as the angle of the shot that killed the victim and the manner in which the blood drained from the victim's body, in order to prove that this was a premeditated killing and not just an accidental discharge of a firearm during a domestic dispute. Petitioner's counsel, however, did not consider any of this circumstantial evidence prior to advising the Petitioner about rejecting the Government's plea offer; in fact, counsel freely admitted that he had not reviewed any of the discovery available to him and was instead proceeding solely on his understanding of the case as related to him by the Petitioner and his mother.
The testimony presented at the evidentiary hearing established that Mr. McLean met with Petitioner's mother the day before the scheduled Rule 11 hearing and heard her version of what occurred on the night of the murder. Mr. McLean then spoke to the Petitioner in a holding cell for approximately five minutes on the day of his scheduled Rule 11 hearing and confirmed that the Petitioner's version of the events was the same as his mother's.
Mr. McLean's advice came at a critical juncture: when the Petitioner was deciding whether to withdraw his assent to a Plea Agreement that he had already signed and instead proceed to trial. Notably, the Petitioner did not speak further with either Mr. McLean or Mr. Ferguson prior to the status hearing before Judge Howell on November 19, 2010, when Mr. McLean announced to the Court that the Petitioner had decided to forego the plea and proceed to trial. Thus, this brief, five-minute meeting was the sum of the advice that the Petitioner received prior to withdrawing his assent to the Plea Agreement.
Standing alone, Mr. McLean's assessment of the likelihood of acquittal was not ineffective assistance per se. "[A]n erroneous strategic prediction about the outcome of a trial is not necessarily deficient performance."
Adequate representation with regard to a proposed guilty plea requires not only investigation and study of the evidence, but also a meaningful analysis of the defendant's potential sentencing exposure. Specifically, the pertinent ABA Standard "contemplates that any plea offer will be assessed not only based on the maximum possible punishment in the event of a guilty plea, but also by comparison to the probable sentence the judge would impose after trial."
The second-degree murder charge posed a potential maximum sentence of life imprisonment. 18 U.S.C. § 1111(b). The firearms offense posed a mandatory minimum consecutive sentence of at least ten years and a maximum consecutive term of life imprisonment.
If the Petitioner had proceeded to trial and been found guilty of second-degree murder, he would have lost the three-level reduction for acceptance of responsibility, resulting in a total offense level of 38 and a resulting recommended Guidelines range of 235 to 293 months on the second-degree murder charge.
Based on his meeting with Mr. McLean, the Petitioner was laboring under the erroneous impression that his maximum exposure if he proceeded to trial was a term of twenty-five years. In rejecting the Government's plea offer, the Petitioner recalled saying, "so what's seven more years on top of 18?" [T. 28]. While it is unclear where the Petitioner gained this erroneous impression, Mr. McLean made no attempt to provide him with correct information. Indeed, Mr. McLean admitted that he was not aware at the time of the full extent of the Petitioner's potential sentencing exposure. Mr. McLean believed that the firearms charge posed a potential sentence of no more sixty months, when in reality the charge posed a mandatory minimum consecutive term of 120 months and the Guidelines would indicate a potential consecutive term of 235 to 293 months. While counsel may have reasonably believed that the Petitioner had, in Mr. McLean's words, a "good shot" at acquittal, such a belief does not relieve his attorneys from their duty to explain the comparative sentence exposure between accepting the plea offer and proceeding to trial.
Merely miscalculating the potential Guidelines range is not ineffective assistance. Counsel's error here, however, was not a mere miscalculation but a total failure to become informed regarding the application of the Guidelines, resulting in counsel advising the Petitioner based on a guess as to the likely sentence that was wildly incorrect. Even with the degree of counsel's error, it is only when coupled with his other errors regarding the evidence that counsel's performance rises to the level of ineffectiveness.
The Government contends that any deficiency in counsel's performance in this regard was alleviated by the fact that the Court advised the Petitioner at his arraignment on the Bill of Indictment of the maximum penalties he was facing for these offenses. If this were counsel's only error, the Government would be correct: the Petitioner would not be entitled to any relief simply because his counsel failed to advise him of the maximum potential penalties before advising him regarding the withdrawal of his assent to the Plea Agreement. Here, however, counsel's lack of knowledge of both the mandatory and likely sentence exposure in the event of a conviction at trial, coupled with his cavalier approach to the evidence, rendered his advice to the Petitioner regarding the withdrawal of his assent to the plea offer deficient.
In addition to failing to provide any meaningful analysis of the evidence or advise the Petitioner regarding his potential sentencing exposure at trial, at no time did Petitioner's counsel advise him of the possibility that upon withdrawing his assent to the Plea Agreement, the Petitioner could face a more serious charge (
Counsel's errors continued to compound following the filing of the Superseding Bill of Indictment. Once the Petitioner was charged with first-degree murder, counsel again failed to discuss with the Petitioner the potential penalties that he would be facing if he were to be convicted at trial. While the Petitioner may have been advised of the maximum potential penalties by the Court at his arraignment, counsel never made any attempt to compare the likely sentence which would result from the entry of the Plea Agreement (14 to 18 years) with the likely sentence which could result from a conviction for first-degree murder and the use of a firearm during a murder. With the filing of the Superseding Bill of Indictment, the Petitioner faced a potential sentence of two consecutive life sentences — a punishment far more severe than what he would have faced under the Plea Agreement. It is undisputed, however, that Mr. McLean and Mr. Ferguson never advised the Petitioner prior to the withdrawal of his assent to the Plea Agreement — or indeed at any time prior to sentencing — of the sentence he would likely receive in the event of a conviction for both first-degree murder and the firearms charge.
The Petitioner made a critical decision — the withdrawal of his assent to an executed Plea Agreement — based on advice that was given without meaningful investigation or study of the evidence or of the applicable Guidelines. The Petitioner decided to withdraw his assent to the Plea Agreement without being counseled about the comparative sentence exposure between accepting the plea and proceeding to trial and without being advised that he could be charged with more serious offenses. Then, once the Petitioner withdrew his assent to the plea offer and was charged with first-degree murder, counsel never provided him with any comparative analysis of the sentence likely to result from accepting the plea offer and the sentence likely to result from a conviction at trial. While none of these actions would necessarily constitute deficient performance standing alone, the accumulation of counsel's errors resulted in the Petitioner receiving assistance that was clearly deficient. For these reasons, the Court concludes that the Petitioner has carried his burden of demonstrating that counsel provided ineffective assistance in advising the Petitioner regarding the withdrawal of his assent to the Plea Agreement.
Having determined that counsel's performance was deficient, the Court turns to the prejudice prong of
The Government contends that there is no credible evidence in the record to show that the Petitioner would have pleaded guilty, as the record indicates that the Petitioner believed that the shooting was an accident and thus he was not guilty of murder, either in the second-degree or otherwise. Contrary to the Government's argument, however, there is credible evidence in the record tending to show a reasonable probability that the Petitioner would have accepted the plea offer upon proper counseling and advice: he had previously done so in this very case. The Petitioner had agreed to, signed, and filed a Plea Agreement, and the parties were prepared to go forward with a Rule 11 hearing on November 10, 2010. It was not until the Petitioner spoke with Mr. McLean, mere minutes before that hearing, that the Petitioner expressed any reservation about entering a plea of guilty, and he expressed such reservations based on Mr. McLean's uninformed assessment of the case.
Further, the Court finds that there is a reasonable probability that the Government would have not have withdrawn the plea offer. The Government had signed a Plea Agreement with the Petitioner, and even after the Petitioner withdrew his assent and superseding charges were filed, the Government continued to offer a plea on the same terms to which the Petitioner had previously agreed. The Government even went so far as to make another formal offer of the same Plea Agreement in February 2011. While the formal Plea Agreement document that was offered to Mr. McLean and Mr. Ferguson is not contained in the record, the Government concedes that the terms of the re-offered Plea Agreement were identical to the terms of the Plea Agreement that the parties signed and filed with the Court in November 2010. [
In his post-hearing brief, the Petitioner argues for the first time that counsel was also ineffective in failing to tell him that the Government's offer of a guilty plea to second-degree murder remained available even after the filing of the Superseding Bill of Indictment charging him with first-degree murder. [Doc. 17 at 13-16].
This claim was not asserted in the Petitioner's original Motion to Vacate, nor was it raised prior to the expiration of the one-year statute of limitations set forth in 28 U.S.C. § 2255(f).
Here, the Petitioner's original Motion to Vacate asserts claims related to counsel's deficient advice regarding the withdrawal of his assent to the Plea Agreement and counsel's failure to advise him that he could possibly be charged with first-degree murder if he rejected the Government's plea offer. The Petitioner's post-hearing claim, that counsel failed to convey the availability of a plea deal once the possibility of a first-degree murder charge became a reality, clearly relates to the same core of operative facts: namely, counsel's deficient advice during the course of pretrial plea negotiations. Accordingly, the Court concludes that the Petitioner's claim as asserted in his supplemental post-hearing brief relates back to his original Motion to Vacate.
Having determined that the Petitioner's claim relates back and therefore is not barred as being untimely, the Court will now consider the merits of the claim. In the seminal case of
In
In order to prevail on an ineffective assistance of counsel claim based upon the failure to communicate a formal plea offer, a petitioner must demonstrate "a reasonable probability that [he] would have accepted the earlier plea offer had [he] been afforded effective assistance of counsel."
Finally, for the reasons stated above with respect to his first ineffective assistance claim, the Petitioner has demonstrated that he would have received a far more favorable conviction and sentence under the terms of the Plea Agreement than he did as a result of the trial. The prejudice resulting from counsel's failure to convey the renewed plea offer, however, is even more egregious. By giving faulty advice on the withdrawal of the assent to the Plea Agreement, counsel caused the Petitioner to forego a plea deal, which likely would have resulted in a sentence of 14 to 18 years. By failing to convey the renewed plea offer, counsel deprived the Petitioner of the opportunity to avoid the imposition of two consecutive life sentences. However much confidence counsel may have had in his ability to secure an acquittal at trial, the stakes were incredibly high, and the Petitioner was entitled to consider the Government's plea offer in order to avoid such a devastating outcome.
As the Petitioner has demonstrated both deficient performance and prejudice with respect to counsel's failure to convey a formal plea offer, the Court concludes that the Petitioner is entitled to relief under this claim as well.
Having determined that the Petitioner received ineffective assistance of counsel with regard to the advice received regarding the withdrawal of his plea agreement as well as the failure to convey a formal plea offer, the Court now turns to the appropriate remedy to be imposed.
Where a defendant has shown a reasonable probability that he would have accepted a plea offer but for counsel's deficient performance, and the offer was for a plea to a count less serious than the ones for which the defendant was convicted at trial, then the appropriate remedy is to require the Government to reoffer the plea proposal.
