United States v. Kalu
683 F. App'x 667 (2017)
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Rule of Law:
A certificate of appealability (COA) for a federal prisoner's 28 U.S.C. § 2255 motion alleging ineffective assistance of counsel will be denied unless the prisoner makes a substantial showing of the denial of a constitutional right, which is not met when the record demonstrates the prisoner's disinterest in plea offers and counsel's advice, even if erroneous, does not amount to deficient performance or prejudice.
Facts:
- Kizzy Kalu was convicted by a jury on 89 counts of various federal offenses, including mail fraud, encouraging and inducing an alien, visa fraud, forced labor, trafficking in forced labor, and money laundering.
- During pretrial plea negotiations, the government discussed the possibility of a 30-37 month sentence.
- Kalu's defense counsel, Peter Menges and Michael Sheehan, communicated the government's proposed sentence range to Kalu.
- Kalu consistently expressed disinterest in any plea offer close to what the government was proposing, specifically rejecting the 30-37 month proposal.
- Kalu stated at his sentencing hearing that he decided to proceed to trial after discussing a possible plea agreement with his attorneys, without suggesting he was pressured.
- The government never extended a formal plea offer to Kalu.
Procedural Posture:
- Kizzy Kalu was convicted by a jury on 89 counts in a federal district court (District of Colorado).
- Kalu was sentenced to concurrent terms of 130 months and 120 months imprisonment.
- Kalu appealed his conviction and sentence on direct appeal to the Tenth Circuit Court of Appeals, which affirmed the district court's decision.
- Kalu subsequently filed a 28 U.S.C. § 2255 motion in the District Court (District of Colorado), asserting a claim for ineffective assistance of counsel during plea negotiations.
- The district court denied Kalu's § 2255 motion on the merits and declined to grant a certificate of appealability (COA).
- Kalu then filed a request for a certificate of appealability (COA) from the Tenth Circuit Court of Appeals.
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Issue:
Does a federal prisoner make a substantial showing of the denial of a constitutional right, warranting a Certificate of Appealability, when alleging ineffective assistance of counsel during plea negotiations based on counsel's failure to pursue a formal plea offer or making erroneous predictions about trial outcomes, despite evidence indicating the prisoner's own disinterest in potential offers and counsel's denial of pressure?
Opinions:
Majority - Carlos F. Lucero, Circuit Judge
No, Kizzy Kalu does not make a substantial showing of the denial of a constitutional right sufficient to warrant a Certificate of Appealability for the denial of his 28 U.S.C. § 2255 motion, because the record demonstrates his disinterest in plea offers and his counsel's actions did not amount to constitutionally ineffective assistance. The court applied the standard from Slack v. McDaniel, requiring a "substantial showing of the denial of a constitutional right" for a COA. Kalu's ineffective assistance claim under Strickland v. Washington, asserting counsel failed to pursue a formal plea offer or made false predictions, failed because a defendant has no right to be offered a formal plea (Missouri v. Frye). Both defense attorneys affirmed Kalu was uninterested in the potential 30-37 month offer, a position supported by Menges's email and Kalu's own statements at sentencing. Furthermore, an erroneous prediction of trial success does not necessarily constitute ineffective assistance (Lafler v. Cooper). The district court properly denied an evidentiary hearing because the case files and records conclusively showed Kalu was not entitled to relief, as conclusory allegations unsupported by specifics are insufficient.
Analysis:
This case establishes a clear precedent that obtaining a Certificate of Appealability for ineffective assistance of counsel claims during plea negotiations requires overcoming a significant evidentiary burden. It reinforces that a defendant's own expressed disinterest in plea offers can negate claims of counsel's deficient performance. The ruling also clarifies that counsel's predictions, even if ultimately inaccurate regarding trial outcomes, do not inherently constitute ineffective assistance. This case highlights the deference appellate courts give to district court findings where the record conclusively rebuts a petitioner's assertions, making it difficult for prisoners to proceed with appeals based on bare, unsubstantiated claims.
