Defendant Could Not Show Counsel Was Ineffective for Failing to Discuss Plea With Government

US v. Flood: In 2002, Flood was part of a group of men who kidnapped and killed a man. Flood was charged with kidnapping resulting in death, conspiracy, and three counts of using a firearm during a crime a violence. Flood potentially faced the death penalty, but the Government did not seek it against him (it did against his codefendant). Flood’s main goal was to avoid a life sentence, which he did not do (he was sentenced to life for kidnapping, followed by consecutive 65 years on the other charges). He filed a 2255 motion arguing that counsel were ineffective for “failing to seek a pretrial resolution of this case.”

Counsel recalled that the Government, during jury selection, had broached the possibility of a plea bargain and they discussed it. However, the Government made clear that to get a plea bargain Flood would have to cooperate, which counsel thought was “too risky.” Counsel did not take the matter to Flood. Government counsel later testified that they believed Flood would not cooperate and so there was no deal to be had. The district court denied Flood’s §2255 motion without holding an evidentiary hearing.

On appeal, a divided Fourth Circuit affirmed the denial of Flood’s §2255 motion. The issue identified in the certificate of appealability was whether the district court abused its discretion by rejecting “Flood’s claim that trial counsel rendered ineffective assistance by failing to pursue a plea agreement on his behalf.” After concluding that the proper standard of review is whether the record “leaves no genuine dispute as to any material fact,” the court held that there was no such dispute that required the district court hold an evidentiary hearing. The court found insufficient evidence of deficient performance, noting the narrow nature of the issue (failure to seek a plea agreement, not failure to report that an offer was made) and pointing to the fact that even Flood agreed that his counsel did discuss a plea bargain with the Government. Nor could Flood establish prejudice, as there was no evidence he would have taken the offer made by the Government (one that required cooperation).

Judge Heytens dissented, arguing that the district court applied the incorrect standard in denying Flood’s motion without an evidentiary hearing and that, alone, was enough to reverse.