Federal Habeas Corpus: Court Cannot Use Counsel’s Affidavit to Avoid Evidentiary Hearing Over Disputed Facts

Amaury Villa v. United States, 2023 U.S. App. LEXIS 12 (6th Cir. Jan. 3, 2023), __ F.4th __.

Indicted in Florida and Connecticut, the defendant cooperated with prosecutors. Meanwhile, he was also indicted in Kentucky. The defendant was unaware of those charges when he pled guilty (represented by Attorney Perez) in the other cases. Those courts sentenced him to concurrent terms of 140 and 98 months. The Kentucky prosecutor (Judd) emailed Meier (the defense attorney) a proposed plea agreement, which assumed no further cooperation but stated that if the defendant were willing to cooperate further, Judd would consider recommending a concurrent sentence. Later, the defendant spoke to Meier and Perez in a three-way phone call. Meier allegedly did not mention Judd’s offer. The defendant met with Judd, an FBI agent, and an investigator. Judd told the defendant that the government wanted him to testify against a co-defendant but did not mention the possibility of a cooperation agreement. The defendant then pled guilty without an agreement and was sentenced to 77 months, consecutive to his other sentences.

The defendant moved to set aside his sentence, under 28 U.S.C. § 2255 citing ineffective assistance of counsel. When Meier provided the case file, the defendant allegedly discovered that Judd had mentioned a cooperation agreement and a concurrent sentence. He then moved to amend his § 2255 motion, attaching an affidavit in which he said that Meier never told him about Judd’s offer and that he would have accepted it, plus an affidavit from Perez. The government submitted an affidavit from Meier, asserting that he told the defendant about Judd’s offer.

The district court denied the motion, reasoning that Judd’s wanting the defendant to testify against Rodriguez-Hernandez should have put him on notice of a potential agreement. The Sixth Circuit vacated and remanded for an evidentiary hearing. The district court expected too much of an uncounseled defendant conversing in his second language with a federal prosecutor. Nothing about the defendant’s meeting with Judd resolved the factual dispute presented by the affidavits.

This case is important because too often judges give more weight to a lawyer’s affidavit versus a movant’s in a Section 2255 case — and then deny an evidentiary hearing, even when the facts are clearly disputed. The standard is that a court must grant an evidentiary hearing when the record DOES NOT refute the facts asserted in the motion, not the other way around.