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    1) DeMarques Morris appealed the denial of his habeas motion claiming ineffective assistance of counsel regarding a rejected plea agreement. 2) Morris argued counsel failed to advise him of the agreement's advantages and disadvantages, but the proposed agreement stated no promises were made about potential sentences. 3) The court affirmed the denial, finding Morris did not show a reasonable probability that with proper advice, he would have accepted the plea offer instead of going to trial.

    Original Description:

    Filed: 2004-07-19 Precedential Status: Non-Precedential Docket: 03-3360

    Original Title

    United States v. Morris, 10th Cir. (2004)

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    1) DeMarques Morris appealed the denial of his habeas motion claiming ineffective assistance of counsel regarding a rejected plea agreement. 2) Morris argued counsel failed to advise him of the agreement's advantages and disadvantages, but the proposed agreement stated no promises were made about potential sentences. 3) The court affirmed the denial, finding Morris did not show a reasonable probability that with proper advice, he would have accepted the plea offer instead of going to trial.

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    26 views6 pages

    Filed: Patrick Fisher

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    1) DeMarques Morris appealed the denial of his habeas motion claiming ineffective assistance of counsel regarding a rejected plea agreement. 2) Morris argued counsel failed to advise him of the agreement's advantages and disadvantages, but the proposed agreement stated no promises were made about potential sentences. 3) The court affirmed the denial, finding Morris did not show a reasonable probability that with proper advice, he would have accepted the plea offer instead of going to trial.

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    of 6

    F I L E D

    UNITED STATES COURT OF APPEALS


    FOR THE TENTH CIRCUIT

    United States Court of Appeals


    Tenth Circuit

    JUL 19 2004

    PATRICK FISHER
    Clerk

    UNITED STATES OF AMERICA,


    Plaintiff-Appellee,
    v.
    DEMARQUES M. MORRIS,
    Defendant-Appellant.

    No. 03-3360
    (D.C. Nos. 03-CV-3336-MLB
    & 99-CR-10086-03-MLB)
    (D. Kan.)

    ORDER AND JUDGMENT

    Before SEYMOUR and ANDERSON , Circuit Judges, and


    District Judge.

    KANE , ** Senior

    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal.

    See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

    therefore ordered submitted without oral argument.


    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

    The Honorable John L. Kane, Senior District Judge, United States District
    Court for the District of Colorado, sitting by designation.

    **

    Defendant DeMarques M. Morris appeals from an order of the district court


    denying his motion for habeas relief filed pursuant to 28

    U.S.C. 2255. We

    granted Mr. Morris a certificate of appealability on the issue of whether he


    received ineffective assistance of counsel due to counsels alleged failure to
    inform him of the advantages and disadvantages of a proposed plea agreement.
    See id. 2253(c)(1)(B). We affirm the district courts judgment as to this issue
    and deny a certificate of appealability as to Mr. Morriss remaining issues.
    After rejecting a plea agreement offered by the government, Mr. Morris
    was convicted by a jury of two Hobbs Acts violations and five violations of
    18 U.S.C. 924(c). On appeal, this court affirmed, except for the five 924(c)
    convictions which we held were multiplicious as each Hobbs Act conviction could
    serve as a predicate offense for only one 924(c) violation.

    See United States v.

    Morris , 247 F.3d 1080, 1084 (10th Cir. 2001). We remanded the action to the
    district court with directions to enter a conviction and sentence on no more than
    one 924(c) count per Hobbs Act conviction.

    Id. at 1090-91.

    On remand, the court imposed concurrent sentences of seventy months on


    the Hobbs Act violations, to run consecutively to a ten-year sentence on the
    conviction for discharging a firearm during a crime of violence, which, in turn,
    was to run consecutively to a twenty-five year sentence on the conviction of
    brandishing a firearm during a crime of violence. This last sentence was
    -2-

    increased because it was a second or subsequent 924(c) conviction. We


    dismissed Mr. Morriss appeal from resentencing on the grounds that he had not
    raised any non-frivolous issues for appeal.

    United States v. Morris , 41 Fed.

    Appx. 259, 261-62 (10th Cir. May 15, 2002).


    Mr. Morris, proceeding pro se, then filed this motion seeking habeas relief.
    In his motion, he alleged that

    counsel was ineffective because counsel had failed

    to advise him of the advantages and disadvantages of the plea agreement offered
    by the government, failed to investigate the facts, and failed to impeach the
    governments key witness during the motion to suppress. He also contended that
    perjured testimony was presented to the grand jury, that his sentencing violated

    Apprendi v. New Jersey, 530 U.S. 466 (2000), and that the p rosecution
    knowingly presented false testimony during the suppression hearing.
    The district court denied relief. Mr. Morris appeals rearguing his original
    contentions. He also argues that there was no probable cause to support his arrest
    and the prosecutor was guilty of misconduct. As noted, we granted a certificate
    of appealability as to whether counsel was ineffective because he failed to
    properly advise Mr. Morris regarding the proposed plea agreement.
    A district court may grant relief under 2255 only if it determines that the
    judgment was rendered without jurisdiction, or that the sentence imposed was not
    authorized by law or otherwise open to collateral attack, or that there has been
    -3-

    such a denial or infringement of the constitutional rights of the prisoner as to


    render the judgment vulnerable to collateral attack. 28 U.S.C. 2255. We
    review the district courts legal rulings on a 2255 motion de novo and its
    findings of fact for clear error. United States v. Kennedy, 225 F.3d 1187, 1193
    (10th Cir. 2000) (quotation omitted). A claim of ineffective assistance of
    counsel presents a mixed question of law and fact which we review de novo. Id.
    at 1197 (quotation omitted).
    To prevail on an ineffective assistance of counsel claim in the plea context,
    the movant must show that his counsels performance was deficient and that
    there is a reasonable probability that, but for counsels errors, he would not have
    pleaded guilty and would have insisted on going to trial. Hill v. Lockhart,
    474 U.S. 52, 59 (1985) (citing Strickland v. Washington , 466 U.S. 668 (1984)) .
    This test also applies in cases such as here, where the defendant alleges that
    ineffective assistance caused him to reject a plea agreement and proceed to trial.
    See Magana v. Hofbauer, 263 F.3d 542, 547 (6th Cir. 2001) (requiring that
    movant show deficient performance and that, but for counsels advice, there was a
    reasonable probability he would have pled guilty); United States v. Gordon,
    156 F.3d 376, 379-80 (2d Cir. 1998) (per curiam) (recognizing ineffective
    assistance claim where counsels misadvice regarding potential sentencing
    exposure caused defendant to reject plea negotiations).
    -4-

    [I]n the ordinary case criminal defense attorneys have a duty to


    inform their clients of plea agreements proffered by the prosecution,
    . . . failure to do so constitutes ineffective assistance of counsel
    under the sixth and fourteenth amendments. Apart from merely being
    informed about the proffered agreement, . . . a defendant must be
    involved in the decision-making process regarding the agreements
    ultimate acceptance or rejection.
    United States v. Golden , 102 F.3d 936, 943 (7th Cir. 1996) (quotation omitted).
    Mr. Morris does not, nor can he, argue that he was not informed of the
    proposed plea agreement. Instead, Mr. Morris contends that counsel failed to
    discuss the merits of the proposed plea with him, which he states included a
    maximum sentence of nineteen years. He concludes that his decision was not
    knowing and intelligent because he would not have gone to trial had he known the
    sentence range he faced if convicted by a jury.
    A review of the proposed plea agreement belies Mr. Morriss contention.
    The proposed plea states that the government had made no promises or
    representations . . . regarding what sentence might be imposed or which
    sentencing guideline level will be appropriate. R. tab. 201, Attach. B at 2.
    Mr. Morriss subjective and self-serving statements are insufficient

    to show a

    reasonable probability that, but for alleged counsels errors, he would have pled
    guilty.

    -5-

    For the foregoing reasons, we AFFIRM the district courts denial of habeas
    relief on the issue on which we granted a certificate of appealability. We DENY
    a certificate of appealability on Mr. Morriss remaining issues.

    The mandate shall

    issue forthwith.

    Entered for the Court

    John L. Kane
    Senior District Judge

    -6-

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