United States of America v. Michael Arrington

Philadelphia, PA - Criminal defense lawyer represented defendant with possession with the intent to distribute controlled substances, conspiracy to do the same, and traveling in interstate commerce with the intent to facilitate unlawful activity charges.

Arrington has a long criminal history, including

multiple drug-trafficking convictions and parole violations

from the 1990s and early 2000s. He does not dispute this

history but claims he stopped engaging in drug activity after he

was released from prison on parole in 2007. The Government,

by contrast, contends Arrington quickly resumed his criminal

activity after his release by becoming a drug supplier in

Pennsylvania in 2008.

In February 2009, the police arrested some of

Arrington's alleged co-conspirators. In the wake of this arrest,

Arrington allegedly helped some of his other associates

attempt to escape apprehension, including by allowing two of

them to spend the night at his home before driving them out of

state. From his release on parole in 2007 until this point,

Arrington had appeared to be a "model parolee” and was

working steadily at a car wash. Supp. App. at 256–58, 302.

However, after his alleged associates were arrested, he

abandoned his parole appointments and eventually fled the

state altogether.

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Police subsequently arrested Arrington after he

unsuccessfully used an alias in an effort to evade authorities.

He was charged with possession with the intent to distribute

controlled substances, conspiracy to do the same, and traveling

in interstate commerce with the intent to facilitate unlawful

activity. He opted to go to trial, where attorney Laurence Kress

represented him and several of his alleged co-conspirators

testified against him. Among other statements, these witnesses

represented that Arrington supplied wholesale quantities of

drugs that they would divide and sell to customers. He

contends there were inconsistencies and credibility issues in

their testimony, including that one of the witnesses admitted to

asking another witness to lie to police on one aspect of

Arrington's trafficking activity. Kress repeatedly highlighted

these issues for the jury during trial in an effort to cast doubt

on the Government's case.

Although the District Court excluded evidence of

Arrington's prior convictions, it allowed the Government, for

the purpose of proving consciousness of guilt under Federal

Rule of Evidence 404(b), to introduce evidence that he fled

from parole. This evidence was discussed only a handful of

times during trial. Arrington claims he told Kress that he

wanted to testify to explain that he absconded from parole not

because of his involvement in drug trafficking, but because he

had accumulated a variety of minor, unrelated parole violations

and decided to run rather than face the consequences. Kress

did not honor this request, instead deciding that Arrington was

not going to testify because doing so would open him to crossexamination, which might enable the Government to diminish

his credibility by introducing evidence of his prior convictions.

Kress, according to Arrington, never sought his consent to

waive his right to testify or explained that the decision was his

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to make. However, during his closing argument, Kress

covered some of the material to which Arrington claims he

would have testified, including explaining that people abscond

from parole all the time for "different reasons that are personal

to them.” Supp. App. at 329. The Government addressed the

issue only briefly during its rebuttal closing argument,

suggesting that Arrington's flight from parole corroborated the

other, and overwhelming, evidence of his guilt.

After deliberating for about three hours, the jury

convicted Arrington. He appealed, and we affirmed. See

United States v. Arrington, 530 F. App'x 143 (3d Cir. 2013).

We held, among other things, that the District Court did not

abuse its discretion in admitting the evidence of his flight from

parole for the purpose of showing his guilty conscience. Id. at

146.

In 2014, Arrington filed a pro se motion to vacate his

convictions under 28 U.S.C. § 2255, arguing, among other

things, that Kress was ineffective for unilaterally waiving his

right to testify. Alongside the motion, Arrington filed a

declaration stating that, if he had been given the opportunity,

he would have told the jury he was innocent and explained the

real reasons he absconded from parole. The District Court

denied this motion without a hearing. Although it presumed

all of his allegations were true and non-frivolous, it decided

Arrington was not entitled to relief because "the result of [his]

trial would not have changed had [he] presented the testimony

he now proposes.” J.A. at 25. In the alternative, the District

Court concluded Kress's performance was not deficient.

Arrington filed an unsuccessful motion for

reconsideration, and then timely appealed to us. We granted a

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certificate of appealability on the ineffective-assistance issue

and appointed pro bono counsel to represent him.

II. DISCUSSION

A. Jurisdiction and Standard of Review



The District Court had jurisdiction under 28 U.S.C.

§ 2255. We have jurisdiction under 28 U.S.C. §§ 1291 and

2253(c). On appeal, Arrington does not ask us to address the

merits of his motion under § 2255. He requests only that we

decide whether the District Court erred in declining to hold a

hearing on his motion. We review that decision for abuse of

discretion, United States v. Scripps, 961 F.3d 626, 631 (3d Cir.

2020), but exercise plenary review over the Court's underlying

legal conclusions and review its factual findings for clear error,

Lambert v. Blackwell, 134 F.3d 506, 512 (3d Cir. 1997).

B. Analysis

1. The Standard for Obtaining an Evidentiary

Hearing on a § 2255 Motion

We begin by clarifying the standard a district court

should use when determining whether a hearing is necessary

on a § 2255 motion alleging ineffective assistance of counsel.

Under that provision, a district court must hold a hearing

"[u]nless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.” 28

U.S.C. § 2255(b).

This involves a two-pronged inquiry. First, the district

court must "consider[] as true all appellant's nonfrivolous

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factual claims.” United States v. Dawson, 857 F.2d 923, 927

(3d Cir. 1988). Second, it must "determine whether, on the

existing record, those claims that are nonfrivolous conclusively

fail to show ineffective assistance of counsel.” Id. at 927–28.

In evaluating claims at the second step, the test is the familiar

one set out in Strickland v. Washington, 466 U.S. 668, 687

(1984), which requires a movant to show that his counsel's

performance was deficient and prejudiced his client's defense.

"If a nonfrivolous claim clearly fails to demonstrate either

deficiency of counsel's performance or prejudice to the

defendant, then the claim does not merit a hearing.” Dawson,

857 F.2d at 928. "If, on the other hand, a claim, when taken as

true and evaluated in light of the existing record, states a

colorable claim for relief under Strickland, then further factual

development in the form of a hearing is required.” Id. To

reiterate, "if a nonfrivolous claim does not conclusively fail

either prong of the Strickland test, then a hearing must be

held.” Id. (emphasis in original). This is a "reasonably low

threshold for habeas petitioners to meet.” United States v.

McCoy, 410 F.3d 124, 134 (3d Cir. 2005) (citation omitted).

As we have observed in other contexts, "colorable legal merit

is distinct from actual merit.” United States v. Begin, 696 F.3d

405, 413 (3d Cir. 2012) (second emphasis in original).

The District Court erred in its articulation of the relevant

standard for obtaining a hearing on a § 2255 Strickland motion.

Although the Court partially described the correct standard at

the outset of its opinion, it later stated it was rejecting

Arrington's claim in part because "the Government's case

against [him] was more than adequate to secure a conviction,

even without evidence of [his] parole violation.” J.A. at 26.

But that describes the standard for evaluating a motion for a

judgment of acquittal under Federal Rule of Criminal

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Procedure 29, not the standard for obtaining an evidentiary

hearing on a § 2255 Strickland motion. See Fed. R. Crim. P.

29(a) ("[T]he court on the defendant's motion must enter a

judgment of acquittal of any offense for which the evidence is

insufficient to sustain a conviction.”); Saranchak v. Sec'y, Pa.

Dep't of Corr., 802 F.3d 579, 599 (3d Cir. 2015) ("Strickland

prejudice does not depend on the sufficiency of the evidence

despite counsel's mistakes.”).

On appeal, the Government seems to suggest that, to

warrant an evidentiary hearing, a § 2255 movant must prove

there is a "reasonable probability” that, absent counsel's errors,

the trial would have had a "different result.” Gov. Br. at 31.

But "[t]hat misstates the appropriate standard,” McCoy, 410

F.3d at 132, because it accelerates the timeline on which a

movant must satisfy his burden under Strickland.

To prevail on a § 2255 Strickland motion, a movant

must prove prejudice, meaning "there is a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694.

But the standard for obtaining a hearing on a § 2255

motion is less onerous. As noted above, the statute

"mandate[s] . . . an evidentiary hearing,” McCoy, 410 F.3d at

134, unless the movant's Strickland claim fails as a "matter of

law,” Dawson, 857 F.2d at 929. See also Scripps, 961 F.3d at

635 (remanding for an evidentiary hearing because we could

not conclude "as a matter of law” whether counsel was

ineffective). A movant need not "prove” anything to warrant

a hearing. He must simply allege a set of facts that is not

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frivolous or clearly contradicted by the record and that

demonstrates (if assumed to be true) that he would plausibly be

entitled to relief under Strickland. Dawson, 857 F.2d at 927–

28. A hearing is warranted where, for example, resolution of

the motion turns on credibility or disputed facts, or the record

is inconclusive about whether a movant is entitled to relief. See

United States v. Tolliver, 800 F.3d 138, 142–43 (3d Cir. 2015)

(remanding for a hearing because of factual disputes between

the parties); United States v. Booth, 432 F.3d 542, 546 (3d Cir.

2005) ("[T]he district court abuses its discretion if it fails to

hold an evidentiary hearing when the files and records of the

case are inconclusive as to whether the movant is entitled to

relief.”); Dawson, 857 F.2d at 930 ("Credibility is a question

of fact to be decided by the finder of fact based on face-to-face

observation.”).

2. Arrington's Claim

We turn to Arrington's claim that the District Court

abused its discretion in declining to grant him a hearing before

denying his § 2255 motion. As noted, the Court partially relied

on an incorrect legal standard in considering that claim.

However, even under the standard articulated above, Arrington

would not be entitled to a hearing, as his proposed testimony

comes nowhere close to undermining confidence in the

outcome of his trial. His Strickland claim thus fails as a matter

of law.

First, the testimonial evidence against Arrington was

overwhelming. At trial, there was consistent testimony that

Arrington supplied drugs for his co-conspirators to cut and sell.

To the extent there were discrepancies in the witnesses'

accounts, they were minor. See, e.g., Arrington Br. at 12–13

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(noting that two witnesses provided differing accounts of

whether one of them was present for one drug transaction).

And while there was evidence that before trial one witness

asked another to lie to the police about a detail—whether it was

Arrington, or someone else, who had paid the witness to pick

up drugs the day of her arrest—there was no evidence that the

witness lied about any aspect of the case during her trial

testimony. Most importantly, Kress raised all of these issues

in open court during trial, but the jury still decided to convict

Arrington.

Compared with the testimonial evidence, Arrington's

flight from parole was a minute portion of the Government's

case against him; it came up only a few, brief times during the

three-day trial. In fact, the Government did not even bother to

make any closing arguments about Arrington's parole absences

until its rebuttal after Kress sua sponte raised the issue during

his closing statement. Even then, the Government hardly

touched on the issue, simply suggesting that Arrington's

apparent consciousness of his own guilt, as demonstrated by

his flight from parole, corroborated the profuse other evidence

against him. It was perhaps unsurprising that the Government

did not rely heavily on Arrington's flight from parole, as the

record already contained another, much clearer, indicator that

he had a guilty conscience: namely, his own admission, via

stipulation, that he unsuccessfully used a false name to avoid

arrest. Against this backdrop, we simply cannot fathom that

Arrington's proposed testimony on the reason for his parole

absences would have helped his case in any way.

Second, if Arrington had testified, it would almost

certainly have been devastating for his defense. Crossexamination would have been "scorching,” United States v.

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Wines, 691 F.3d 599, 605 (5th Cir. 2012), enabling the

Government to seek to introduce impeachment evidence of his

prior convictions, parole violations, and drug activity.

Moreover, his proposed testimony on the reason for his parole

absences was internally inconsistent and could only have

undermined his case. Specifically, although Arrington initially

wrote in his declaration that he did not flee parole because he

was afraid of being indicted for drug trafficking, he then

contradicted himself by stating that one of the reasons he fled

was that he was scared the Government would come looking

for him after one of his alleged co-conspirators was arrested.

Because Arrington's proposed testimony could not possibly

have helped his case—indeed, we can conjure no way it would

not have hurt him—we conclude his Strickland prejudice claim

is not colorable.2

Thus the District Court was not required to

hold an evidentiary hearing.

The bar for obtaining an evidentiary hearing on a § 2255

motion is low. Even so, Arrington does not meet it, because

his claim conclusively fails Strickland’s prejudice prong. We

therefore affirm.