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United States v. MacLloyd

United States District Court, E.D. Michigan, Southern Division

May 24, 2018




         On August 26, 2010, Mr. David MacLloyd was convicted by jury verdict of Conspiracy to Distribute and Possess with Intent to Distribute More Than 5 kilograms of Cocaine, 21 USC §846 and §841(a)(i) (Count 1); Aiding and Abetting Possession of More Than 5 Kilograms of Cocaine, 21 USC §841(a)(1) and 18 USC §2 (Count 2); Use of Telephone to Cause and Facilitate a Felony Drug Transaction, 21 USC §843 (Counts 3-5 and 18-25); Maintaining a Drug-Involved Premises, 21 USC §856(a)(1) (Count 26) and Forfeiture (Count 31). On February 6, 2012, MacLloyd was sentenced to 360 months imprisonment on Counts 1 and 2 and received lesser sentences on the other counts.

         Mr. MacLloyd filed a timely direct appeal of his convictions and sentences to the Sixth Circuit Court of Appeals. That court affirmed his convictions and sentences on April 16, 2013, United States v. MacLloyd, 526 Fed.Appx. 434, 447 (6th Cir. 2013). A Petition for Writ of Certiorari was denied by the U.S. Supreme Court on October 8, 2013.

         On January 24, 2014, MacLloyd filed a timely pro se motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. Among his claims for relief, MacLloyd alleged that Loeb provided ineffective assistance by “not properly communicating [a] plea deal.” (R.252, 2255 Motion, PgID #2475). MacLloyd alleged that the government presented Loeb with a formal written plea offer that “w[as] never shown to me or properly communicated to me.” (R.252, PgID #2475). Loeb allegedly never discussed the offer's details or merits, he provided only a “non-detailed description of a plea.” (R.252, PgID #2469-70, 2475). MacLloyd further alleged that if Loeb had properly advised him, MacLloyd “would have definitely taken the [plea deal] because of the cooperation.” (R.252, PgID #2475). On February 14, 2014, MacLloyd filed a substantially identical amended motion, adding further claims not relevant to this proceeding. (R.256, Amended 2255 Motion, PgID #2495).

         On July 11, 2014, the government responded opposing MacLloyd's motion arguing that MacLloyd's ineffective assistance issues fall “woefully short in proving these acts or omissions were ‘outside the wide range of professionally competent assistance.'” (R.263, PgID #2513. On August 18, 2014, MacLloyd replied to the government and provided additional information about Loeb's ineffective assistance with regard to a written Rule 11 plea offer by the government. (R.265, PgID #2543), and further elaborated about the circumstances of his claim against Loeb in an addendum to his reply (R.267, PgID #2547).

         On November 20, 2014, this Court denied Mr. MacLloyd's motion without a hearing. Regarding MacLloyd's claims of ineffective assistance of counsel, the court stated that “[t]he Sixth Circuit and other courts reject ineffective assistance claims that rest upon conclusory, unsupported allegations of counsel's deficient performance.” (R.268, Order, PgID #2555). The Court found that MacLloyd “likewise failed to show the prejudice required for a finding of ineffective assistance of counsel.” The Court denied a certificate of appealability. (R.268, PgID #2556).

         On December 3, 2014, MacLloyd filed a timely notice of appeal, and on April 6, 2015, he moved the Court of Appeals for a certificate of appealability (R.269, PgID #2558). On August 18, 2015, the appeals court granted a certificate of appealability on the issue of “whether the district court should have held an evidentiary hearing on MacLloyd's claim that he was denied the effective assistance of counsel because Loeb did not fully advise him of a favorable plea offer.” On April 4, 2017, the Sixth Circuit entered an opinion reversing and remanding for an evidentiary hearing.

         This Court held an evidentiary hearing held on November 30 and December 7, 2017.

         Findings of Fact

         1. On May 22, 2008, a federal grand jury returned an indictment charging David Erike MacLloyd, his brother Clifford, and others with conspiracy to possess with intent to distribute five kilograms or more of cocaine, in violation of Title 21, United States Code, Section 846. [R. 1]. If convicted as charged, MacLloyd faced a mandatory minimum term of imprisonment of ten years and a maximum of life.

         2. MacLloyd appeared on the indictment on May 28, 2008, represented by attorney Nicholas Kazmerski. [R. 5]. Kazmerski was a student of attorney Thomas Loeb's at the trial college of the Criminal Defense Attorneys of Michigan, and he asked Loeb to assist him in representing MacLloyd, due to Loeb's more significant experience with federal criminal defense. [R. 293 at 8-9, PgID 2623-24]. Loeb entered an appearance on June 20, 2008. [R. 40].

         3. Loeb has been a licensed attorney in Michigan, representing criminal defendants for more than forty years; for at least twenty of those years, he has been representing defendants in federal court. [R. 293 at 6, PgID 2621]. Loeb is very familiar with the ethical obligations of attorneys; in fact, part of his practice is grievance defense, representing licensed professionals accused of misconduct. [R. 293 at 30-31, PgID 2645-46]. MacLloyd signed a fee agreement, paying Loeb $15, 000 of a promised $30, 000. [R. 293 at 9, 32, 57-58, PgID 2624, 2647, 2673-74]. Loeb advised MacLloyd of his statutory sentencing exposure (mandatory ten-year minimum, up to life) at the very beginning of their relationship. [R. 293 at 58, PgID 2674].

         4. On September 23, 2008, then-Assistant United States Attorney (AUSA) Matthew Schneider faxed a proposed plea agreement and cooperation agreement to Kazmerski. [Gov't Ex. 1]. The plea agreement contemplated a sentencing guideline range of 135-168 months, with a ten-year mandatory minimum. Id. The cooperation agreement provided that, if the government - in its sole discretion - determined MacLloyd had provided substantial assistance, the government would not seek to establish a higher guideline range by contesting acceptance of responsibility or establishing a greater drug amount than contemplated by the plea agreement. Id.

         5. On October 22, 2008, AUSA Schneider faxed a letter to Loeb, referencing a plea agreement he had forwarded to Loeb and advising him that plea agreement would result in an estimated guideline range of 135-168 months. [Gov't Ex. 2]. The referenced plea agreement was the same one that had been provided to Kazmerski on September 23. [R. 293 at 15, PgID 2630]. AUSA Schneider further advised that MacLloyd's estimated guideline range if convicted at trial was 235-293 months. [Gov't Ex. 2]. In addition, a Rule 11 plea agreement was offered to ...

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