USCA1 Opinion

March 27, 1995

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________

No. 94-1710
MARTIN CAREY,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
___________________
____________________

ERRATA SHEET
ERRATA SHEET

Please make the

March 22, 1995:

following changes to the opinion

Page 2, line 1
U.S.C."
Page 15, line

- change "18

U.S.C." to "28

2 - change "18

U.S.C." to "28

issued on

U.S.C."

United States Court of Appeals

United States Court of Appeals
For the First Circuit
For the First Circuit
____________________
No. 94-1710
MARTIN CAREY,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________

Judith Mizner with whom Marshall A. Stern was on brief

______________
___________________
appellant.
Margaret D. McGaughey, Assistant United States Attorney, w
_______________________
whom Jay P. McCloskey, United States Attorney and Richard W. Murp
________________
________________
Assistant United States Attorney, were on brief for appellee.
____________________
March 22, 1995
____________________

STAHL,
STAHL,

Circuit Judge.
Circuit Judge.
_____________

2255, petitioner

Pursuant to

Martin Carey ("Carey") moved

28 U.S.C.

to (1) vacate

his guilty plea on the ground that he was taking prescription

drugs at
his

the time of his

sentence because

counsel.
motion

of claimed

A magistrate
and, following

agreed.

We affirm.

change of plea, and

ineffective

(2) set aside

assistance of

judge recommended denial

de
__

novo review,
____

of Carey's

the district

court

We discuss separately the two issues and

the facts giving rise to them.

DISCUSSION
DISCUSSION
__________
A. Voluntariness of Plea
_________________________
1. Relevant Facts
__________________
On
pled

not

August 2,
guilty

to

manufacture

of

October 18,

1990, Carey

1990, Carey
a

one-count

marijuana.

He was

and the

initially appeared
indictment
released

and

charging

on bail.

government entered into

On
a

written agreement under which he would enter a plea of guilty

conditioned on his right to appeal a previously denied motion
to suppress.
On the
Pasquale
In

same day,

Perrino, appeared

a handwritten

Carey and his

for the

affidavit appended

retained counsel,

change-of-plea hearing.
to his

habeas motion,

Carey

states that,

plea,

I was

"[a]t the

taking

time I

entered my

prescription drugs"

depression arising from

to help

change of
deal with

the recent deaths of my daughter and

-22

father.

Carey further states

that:

"I

believe that these

medications affected my judgment," and that, "[w]ithout them,

I do not believe that I
at

that time."

administered
that I

was

would have decided to change my plea

Carey notes

in August
taking

that, because

1990, "pretrial

these

colloquy, the district court

of a

drug test

services

was aware

medications."

During

the

did not ask Carey about

plea
use of

prescription medications.
2. Discussion
______________
Summary

dismissal

of

2255

petition

is

appropriate if it plainly appears from the face of the motion

that the movant is not entitled
Rules Governing

to relief.

2255 Proceedings.

Rule 4(b) of the

While genuine issues

of

material

fact

hearing

is

may not

not

be

required

resolved
where

without a

habeas

hearing,

motion

(1)

a
is

inadequate on its face, or (2) although facially adequate, is

conclusively refuted as to the alleged facts by the files and
records of the case.

United States v. DiCarlo, 575 F.2d 952,

_____________
_______

954 (1st Cir.), cert. denied, 439 U.S. 834 (1978).

_____ ______
must

take

motion

as

the

allegations contained

true,

except

to

contradicted by the record

to the

extent that they

statements of fact."

the

in

the

extent

that

The court

petitioner's
"they

are

or are inherently incredible, and

are merely conclusions

rather than

Mack v. United States, 635 F.2d 20, 26____

_____________

27 (1st Cir. 1980).

-33

"[T]he strictures
of

Criminal Procedure

voluntary

. .

and intelligent

of Rule 11 of
. are

the Federal Rules

calculated to

character of

insure the

the plea."

United
______

States v. Parra-Ibanez, 936 F.2d 588, 590 (1st Cir. 1991).

______
____________
plea will be

set aside if a violation of the rule implicates

one of its "core concerns," United States v. Allard, 926 F.2d

_____________
______
1237,

1244

(1st Cir.

1991),

substantial rights constitute

Proc.

11(h).

We have

but

variances not

affecting

harmless error, Fed. R.

never stated that

Crim.

the voluntariness

requirement, indisputably a "core concern," see, e.g., United

___ ____ ______
States
______

v. Cotal-Crespo, No. 94-1354, slip op. at 7 (1st Cir.

____________

Jan. 30, 1995), compels the district court to ask a defendant

about prescription
595.

Nonetheless,

alcohol or drug
made

drug use,
many

see Parra-Ibanez, 936

___ ____________

judges

use during the

clear that

routinely

inquire

Rule 11 colloquy.

voluntariness does

require that,

court
"has
been
informed
that
the
defendant
has recently
ingested
drugs or other substances capable of
impairing his ability to make a
knowing and intelligent waiver of
his constitutional rights", . . .
[it] must broaden
its Rule
11
inquiry with a view to assessing the
impact of the ingested substances on
the
defendant's
capacity
to
understand
the
change-of-plea
process and intelligently determine
a proper course of action.

-44

F.2d at

We

about
have

once the

Id. (quoting United States v. Cole, 813 F.2d 43,

___
_____________
____

46 (3d Cir.

1987)).
Although
directly

about

the

district

court

did

not

use,

our

review of

prescription drug

transcript reveals nothing that

even arguably suggests

the

defendant was not in complete

Cf.
___

United States v.
______________

Cir. 1989) (mere

Pellerito, 878 F.2d

_________

fact defendant

some

evidence

rationality),
one

point

that

1535, 1542

ingested potentially

the

sought

characterization of the plea.

are

in

fact

medication

guilty as

to

correct

("Q.

charged

that

in

Do you
this

(1st
mood-

there must

affected

cert. denied, 502 U.S. 862 (1991).

_____ ______
Carey

the

command of his faculties.

altering medication insufficient to vitiate plea;

be

ask Carey

his

Indeed, at

the

court's

acknowledge you
indictment?

A.

Conditionally, yes sir.")

Nor do we agree
on

constructive notice

with Carey that the court

because

pretrial services

was put
had

the

August

1990

observed,

the

drug-test

results.

district court

As

is a

we

have

frequently

busy place,

see, e.g.,
___ ____

United States v. Panitz, 907 F.2d 1267, 1273 (1st Cir. 1990),
_____________
______
and

the

Rule 11

strictures

certainly

do not

diminish

judge's burdens, see, e.g., United States v. Medina-Silverio,

___ ____ _____________
_______________
30 F.3d 1, 3 (1st

Cir. 1994).

the protections in the

a

judge

to search

out

In this instance,

we believe

Rule are sufficient without requiring

all

possibly relevant

information

-55

contained in

every government agency's files.

The district

court properly denied Carey's voluntariness claim.

the

facts in

Carey's

allegations as

true, we

Assuming
nonetheless

conclude that he is not entitled to relief, and his motion to

vacate fails.

-66

B. Ineffective Assistance of Counsel

_____________________________________
Carey
counsel

premises

claim on

downward

the

departure

his

ineffective-assistance-of-

government's refusal

pursuant

to

substantial assistance and the

to

U.S.S.G.

move for
5K1.11

a
for

government's opposition to

downward adjustment for acceptance of responsibility pursuant

to U.S.S.G.

3E1.1.

We find his arguments unpersuasive.2

1. Relevant Facts
__________________
On an unspecified date following the change-of-plea
hearing, Carey and Perrino traveled to Portland, Maine, for a
debriefing

by

the

("DEA").

At

this

U.S.

Drug

Enforcement

time, Perrino

(Carey's

represented Joe Darling ("Darling"),

relating to the same
Carey's

counsel)

also

who faced state charges

marijuana-growing operation that led to

federal charges.

claims Perrino

Administration

told him

On the

way

to "tell the

to Portland,

Carey

government everything

[he knew] but that there was no reason to mention Mr. Darling

____________________
1.

U.S.S.G

5K1.1 in relevant part states:

Upon motion of the government stating

that
the
defendant
has
provided
substantial
assistance
in
the
investigation or prosecution of another
person who has committed an offense, the
court may depart from the guidelines.
2. The magistrate's report considered Carey's
assistance-of-counsel claim in the context of

ineffectivevacating his

guilty plea rather than sentencing.

As we discuss below,
Carey's motion alleges that ineffective assistance of counsel
affected his sentencing and not his entry of plea.
-77

at all."
Several

Carey

did not mention Darling at

that debriefing.

weeks later, at a second debriefing session with DEA

immediately

prior

to

discuss Darling.
interest

led to

involvement,

his

sentencing

hearing,

Carey contends that

his initial

which

led

to

did

Perrino's conflict of

failure to

in turn

Carey

disclose Darling's

both the

government's

refusal to file a motion pursuant to Section 5K1.1 and to the

government's

opposition

to

downward

adjustment

for

acceptance of responsibility.
The
hearing on
appended to

district

court

conducted Carey's

January 25,

1991.

The

by

presentence investigator

his report a memorandum

Responsibility," which described an

state

authorities

operation.

According

participated

in

of
to

entitled "Acceptance of
investigation undertaken

separate

marijuana-growing

the memorandum,

this operation,

sentencing

which

took

Carey

actively

place over

period

of about six weeks

fall of 1990 (that

prior

to

involved

during the late

is, following his initial appearance

his change-of-plea
in

prosecutor

this
stated

hearing).

operation.
at

the

As

had provided to date

but

pledged

Carey

government did not file

allocution, Carey stated,

to

sentencing

information Carey
that

summer and early

his

future

but

Darling was

also

cooperation,

the

hearing

that

the

was not significant,

cooperation.

a section 5K1.1 motion.

among other things,

The

During his
that "[t]here

-88

are no victims
crime

who will suffer

except my family."

accepted

victim from

this

The court concluded that, based on

Carey's post-charge conduct and

no long-term

long-term effects from

the

responsibility for

his statement that there was

crime, Carey

his conduct

"has not

in this

truly

case, and

that his effort at the ninth hour . . . to cooperate with the

government, is

not capable of sufficient

evaluation for the

court to overcome the conclusion that is thereby yielded."

2. Discussion
______________
To
claim,

establish

a defendant

below the

must demonstrate

(1) that

counsel fell

applicable standard for performance,

and (2) that

prejudice resulted.
F.3d

456,

463

Washington, 466
__________

conflict

Cir.

1993)

U.S. 668, 687

exists.

defendant

represented

See, e.g., United States v. Fisher,

___ ____ ______________
______

(1st

prejudice per se
"the

an ineffective-assistance-of-counsel

(citing

(1984)).

Prejudice

demonstrates

Carey argues

that

counsel

interests'

and

interest

adversely

affected

performance.'"

Strickland, 466 U.S. at

__________

v. Sullivan, 446 U.S.

________

or "real."

769 F.2d

Cir. 1985).

his

The

a plausible alternative

-99

actual
lawyer's

conflict of
v. Fahey,
_____

establish an actual

conflict of interest, the defendant must show (1)

could have pursued

`actively
`an

United States
_____________
To

if

692 (quoting Cuyler

______

335, 349-50 (1980)).

interest must be actual

829, 834 (1st

that

v.
that

is legally presumed

conflicting
of

Strickland
__________

the lawyer

defense strategy

or tactic, and
inherently

(2) the

alternative strategy

in conflict with,

attorney's other

or tactic

or not undertaken,

interests or

Soldevila-Lopez, 17 F.3d 480,

_______________

loyalties.

was

due to the

United States v.
______________

486 (1st Cir. 1994).

On this

point, Carey's claim fails.

Carey's

theory

rests

on

single

factual

allegation: that Perrino told Carey not to mention Darling in

his initial debriefing.

Carey argues that an actual conflict

is "clear"

because his best interests

government

everything

including Joseph

counsel could

against

Darling.

course of

have

about

offered to

anybody

or

anyone,

and, further, that

have Carey

testify

We think that the single fact of Perrino's

insufficient to

action was either

undertaken
Carey's

knew

Darling, at the outset"

defense

statement is

he

required "telling the

establish that

"inherently in conflict

due to" Perrino's other loyalties.

best interests

course suggested

could

by Perrino.

the counselled

have dictated

Id.
___

or not
In fact,

precisely

the

For example, inasmuch as state

authorities already knew of Darling's activities, any proffer

by

Carey would

could

be unlikely

potentially

antagonize

to

impress his
Darling into

debriefers but
divulging

more

about
were
might

Carey.

Furthermore, because

involved in the
well have

post-appearance growing

been

Perrino's advice.

both Carey

To

in Carey's

interest

be sure, all this is

and Darling
operation, it

to have

heeded

speculation, but

-1010

so is Carey's conclusory suggestion that Perrino breached his

duty of loyalty.
cases,

we have

Carey must show more.

repeatedly

stated that

demonstrate

that the

alleged

attenuated

hypothesis

having

adequacy
F.2d

10,

(1st

Martorano, 620 F.2d

_________
accepted as true

Cir.

little
Brien
_____

1982)

912, 916

and read

the defendant

conflict is

of representation."
15

In actual-conflict

consequence

"some
to

the

v. United States, 695

______________

(citing

United States
______________

(1st Cir. 1980)).

in its most

allegation offered by Carey

this

Accordingly,

because no

Even

friendly light,

single factual
hurdle.

more than

must

v.
when
the

does not surpass

actual conflict

of

interest

existed,

we

conclude

that

prejudice

cannot

be

legally presumed.
One step
Perrino's advice

remains in

that

defendant

it

must

Assuming that

fell short of Strickland's

__________

still must determine

conclude

our analysis.

first prong, we

whether prejudice in fact resulted.

did

not.

demonstrate

To
that

establish
there

was

prejudice,
a

We
a

reasonable

probability that, but for counsel's errors, the result in the

proceeding would
at

694.

have been different.

Prejudice

incorporates

determination; we also must

the

proceeding

Lockhart
________
Scarpa
______

was

fundamentally

38

more

than

outcome

determine whether "the result of

v. Fretwell, 113 S.
________
v. Dubois,
______

Strickland, 466 U.S.

__________

unfair

Ct. 838, 842

F.3d 1,

-1111

12

or

unreliable."

(1993); see also

___ ____

(1st Cir.

1994),

cert.
_____

denied,
______

115

S. Ct.

940 (1995).

Perrino's statement,

the outcome

different.

By

its

terms,

government full discretion

motion, subject to
based

on

an

us

to file a

5K1.1

vests

Darling

motive.3

ultimate

The

significant."
First,

at

authorities
drugs.
his

that

At least
the

time

already

have

changed

Carey's

v.

the

government's

assistance

was

"not

three facts support this conclusion.

of

the

knew

initial

that Darling

debriefing,

its response

United
______

any information

debriefing,
was

the

government

to Carey's

objections to

state

involved

was

with

Darling at
apparently

unimpressed with whatever information Carey provided.

in

was

if Carey had

Second, although Carey did freely discuss

second

the

record allows

certainty that, even

not

determination

to file

Wade
____

1840, 1843-44 (1992).

would

in

no

substantial-assistance

discussed Darling at the initial debriefing,

about

would be

if the refusal

unconstitutional

to conclude with near

that absent

in this case

section

review only

States, 112 S. Ct.

______

We conclude

Third,

the magistrate's

report, the government makes clear that if Carey were ordered

to be resentenced, it would not move for a downward departure
because, at

that point, "substantial assistance

[could not]

be rendered and [could] never be rendered."

____________________
3.

Carey did

not enter

into an agreement

under which

the

government would be bound to seek a downward departure.

-1212

Finally,
detect no

evidence

upon

careful review

even arguably

sentencing was either unfair

conclude

that Carey

suffered

of

the

suggesting

or unreliable.

record, we

that

Carey's

Accordingly, we

no prejudice

and, thus,

his

ineffective-assistance-of-counsel claim fails.

CONCLUSION
CONCLUSION
__________
For

the

foregoing reasons,

the

decision

district court is
affirmed.
affirmed.
________

Dissent follows.
________________

of the

-1313

BOWNES, Senior Circuit Judge, dissenting in

BOWNES, Senior Circuit Judge,
_____________________
I fully
an

part:

agree that there was no error in the failure to hold

evidentiary

hearing

on

Carey's

claim

that

the

voluntariness of his plea was compromised by his ingestion of

prescription medications prior to the change of plea hearing.

disagree, however,

rejected

Carey's

that

conflict

evidentiary hearing.

the

district court

of

interest

claim

permissibly
without

an

For this reason, I respectfully dissent

from Part B of the majority opinion.

I.
I.
__
At the outset,
bedrock
right

I think it important to

legal tenets.

First,

effective

assistance

to

"the right to
of

counsel is the

counsel."

Richardson, 397 U.S. 759, 771 n.14 (1970).

__________

state some

McMann
______

v.

Second, the right

to effective assistance of counsel is always denied

______

where an

actual conflict

lawyer's

performance.

of

interest negatively

See Cuyler
___ ______

affects a

v. Sullivan, 446
________

U.S. 335, 345-50

(1980).

In other words, an actual conflict of interest is

special

breed

of

ineffective

assistance

harmless and is presumptively prejudicial.

And

third,

the right

to

effective

applies at the sentencing stage of

which

is

never

Id. at 349-50.
___

assistance of

a felony case.

counsel
See Mempa
___ _____

v. Rhay, 389 U.S. 128, 134 (1967).

____
I

recognize

effectiveness ordinarily

that

the

is judged

-14-

standard
may be
___

by

more lax at

which
the

14

sentencing
Cf.
___

stage of a noncapital

Strickland
__________

v.

Washington,
__________

case than it
466 U.S.

is at trial.

668,

686

(1984)

(leaving open the question whether Strickland's effectiveness

__________
definition should
ordinary

apply

counsel's

sentencing, which may

and standardless
require

to

performance

"an

involve informal proceedings

discretion in the sentencer,

different

at

approach

to

the

constitutionally effective assistance").4

and hence may

definition

There

can be

of
no

doubt, however, that a lawyer whose performance at sentencing

was compromised by
rendered the

client

mandated by the

the

conflict of

effective

Constitution.

975 F.2d 1042, 1048

sentencing

an actual

interest has

assistance

of

not

counsel

See United States v. Swartz,

___ ______________
______

(4th Cir. 1992) (applying Cuyler

______

stage); United States v.

______________

Ziegenhagen, 890
___________

at the
F.2d

937, 939-41 (7th Cir. 1989) (same); see also United States v.
___ ____ _____________

Green,
_____

680 F.2d 183, 191-205

(D.C. Cir. 1982) (Bazelon, J.,

dissenting), cert. denied, 459 U.S. 1210 (1983).

_____ ______
II.
II.
___
In light
that the

of the

foregoing authority, it

appropriate inquiry here simply

is clear

is whether Carey's

____________________
4.

Strickland,
of
course,
__________
Guidelines. Federal sentencing
be described,
in the words

predated

the

Sentencing

proceedings today can hardly

of
Strickland, as either
__________
sentencer with "standardless

"informal" or as governed by a
discretion." 466 U.S. at 686.
It must also be noted that despite the above-quoted
dictum, we have applied the Strickland effectiveness standard
__________
at sentencing. See Carsetti v. Maine, 932 F.2d 1007, 1012-14
___ ________
_____
(1st Cir. 1991).
-1515

allegation is sufficient to state a claim that his lawyer had

__________
_____ _ _____
an

actual conflict of

interest.

As

the majority concedes,

under

28 U.S.C.

2255, a

evidentiary hearing
records of

"[u]nless the

the case conclusively

entitled to no
dismissed

petitioner

relief .

without

. .

motion and the

show that the

."

hearing

is entitled

Thus, a
only
____

if

to

files and
prisoner is

petition can
the

an

be

petitioner's

allegations, if credited, would not entitle the petitioner to

___
relief,

or "if

because

they

the allegations
are

contradicted

incredible, or conclusions

cannot be accepted
by

the

record, inherently

rather than statements

United States v. Rodriguez Rodriguez,

_____________
___________________

as true

of fact."

929 F.2d 747, 751 (1st

Cir. 1991); see also Dziurgot, v. Luther, 897 F.2d 1222, 1225
___ ____ ________
______
(1st

Cir. 1990); Mack v.

____

United States, 635

_____________

F.2d 20, 26-27

(1st Cir. 1980).

Here,

Carey's allegation that

his lawyer told him

not to tell the government about Darling

is not contradicted

by

the

record,

unremediable.
to satisfy

inherently

conclusory,

or

Moreover, if true, it might well be sufficient

the two-pronged

conflict of interest:
conflicting interests";
interest

incredible,

test for establishing

an actual

(1) that counsel "actively represented

and (2) that "an

adversely affected his

actual conflict of

lawyer's performance."

See
___

-1616

Cuyler, 446 U.S.

______
"Carey's best

at 349-50.5

interests

course suggested
supplied).

evidentiary hearing

that

could

at which

would have
advice was

well have

plausible as the
required

but

we

opinion at

cannot

know

motivated
him at

After
from

without

the

an

deny the

all, the inference

his petition

-- that

by loyalty

to Darling

sentencing

-- is

majority's speculation.

that

9 (emphasis

Perrino could either

us draw

harmed

dictated precisely

See
___

or explain his action.

Carey

Perrino's

could have
_____

by Perrino."

Perhaps,

allegation

The majority speculates

just

think the

and
as
law

the district court to hold a hearing and to resolve

these questions.
III.
III.
____
After

concluding

that

Carey does

not

state

an

actual conflict of counsel claim, the majority states that it

"still

must determine whether

See opinion
___
not

at 10.

It

have engaged, in

Carey's
conflict

allegation

prejudice in

does not need to

this analysis.

is

claim (as the

insufficient

fact resulted."

engage, and should

If, on the
to

state

majority holds), there

one hand,
an

actual

is no viable

____________________
5.

It

should be

requirement

borne

in mind

is

that Cuyler's
______
to a showing

"adversity"

not tantamount
of harm or
___
prejudice; Cuyler makes
very clear
that a
defendant
______
victimized by a lawyer with dual loyalties need not show harm
or prejudice. Cuyler, 446 U.S. at 349-50.
For this reason,
______
adversity must be construed as any action taken by a lawyer
which was prompted by the lawyer's loyalty to some other
partyand which was not in the complaining client's interest.
-1717

claim of ineffective assistance of counsel, and the prejudice

analysis

is entirely superfluous.

allegation is

sufficient to

If, on the other, Carey's

state an actual

conflict claim

(as I maintain), the prejudice analysis is patently improper.

The majority in
defendant

Cuyler could
______

who shows

affected

the

that

adequacy

not have been

a conflict
of

his

demonstrate prejudice in order to

clearer:

of interest

"[A]

actually

representation

need

not

obtain relief."

446

U.S.

at 349-50.
IV.
IV.
___
Even were I to ignore Cuyler and deem Carey's claim
______
as being

properly subject to

not agree that there

by the petard

a prejudice analysis,

was no prejudice here.

of an assertion Cuyler did not

______

I could

Hoisting Carey
require him to

make, the majority confines its prejudice inquiry to the harm

emphasized by Carey in

his motion (that his failure

about

initial

Darling

at the

absence of a
"with

near

debriefing

to talk

resulted in

the

5K1.1 motion at his sentencing) and determines

certainty

Darling

at the

initial

Darling

would not

have

that,

even if

debriefing,
changed

Carey

had

discussed

any information

the government's

about

ultimate

determination that Carey's assistance was `not significant.'"

See opinion at 11.
___
I
First,

I am

have

two

loath to

problems
decide what

-1818

with

this

determination.

the government

would or

would

not

have done

tested by

in this

adversarial

case without

questioning.

sworn testimony

And more

importantly,

even if I could conclude that Carey would not have received a

5K1.1 motion at
Carey

was not

disloyal.

In

his initial sentencing, I cannot

harmed in

some other

this vein, I point

way if his

say that
lawyer was

out that Carey could

come

out of a second sentencing with a lower sentence than the one

he currently is serving.
months,

and he

regardless
district

received a

of whether
court

sentence of

there was

found that

assistance

of

sentencing,

it would

exercise

Carey's guideline

counsel

by setting

in

Carey
in

109 months.

Thus,

5K1.1 motion,

if the

had received

connection

no way

be

Carey's sentence

second sentencing hearing.

assume

range was 97-121

with

engaging in
aside and

It is not at all

ineffective
his

first

an

empty

ordering a

far-fetched to

that a lawyer completely loyal to Carey might be able

to persuade the judge to sentence him at the lower end of the

appropriate guideline range.
The

majority concludes

its prejudice

analysis by

stating that it
suggesting

does not "detect any evidence

that

unreliable."
statement,

Carey's

Id. at 11.
___
I

hardly

evidentiary hearing
developed.

sentencing was

even arguably

either

unfair

While I don't disagree

find
at which

it

surprising;

with this

there

such evidence might

or

was

no

have been

That is the main point of my dissent.

-1919

V.
V.
__
Binding

Supreme

Court

and

Circuit

precedent

prohibited the district court from rejecting Carey's conflict

of

interest

claim

without

therefore dissent from Part B

an

evidentiary

hearing.

of the majority opinion, which

affirms the denial of Carey's claim without a hearing.

-2020