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No. 96-1546
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Douglas Bemis, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
United States of America, *
* [UNPUBLISHED]
Appellee. *
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Submitted: September 20, 1996
Filed: September 30, 1996
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Before BOWMAN, MAGILL, and LOKEN, Circuit Judges.
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PER CURIAM.
Douglas Bemis appeals from the District Court's1 denial of his 28
U.S.C. § 2255 (1994) motion without an evidentiary hearing. We affirm as
to most of Bemis's claims, but remand for an evidentiary hearing on Bemis's
claim that his sentencing counsel had a conflict of interest.
In November 1989, Bemis pleaded guilty to conspiring to distribute
cocaine, in violation of 21 U.S.C. § 846 (1994), and to laundering money,
in violation of 18 U.S.C. §§ 2, 1956(a)(1)(A)(i), (a)(1)(B)(i), and
(a)(1)(B)(ii) (1994). The District Court2 sentenced him to two concurrent
terms of 168 months imprisonment.
1
The Honorable Russell G. Clark, United States District Judge
for the Western District of Missouri.
2
The Honorable William R. Collinson, late a United States
District Judge for the Western District of Missouri.
On direct appeal, we affirmed. United States v. Bemis, No. 90-1458, slip
op. (8th Cir. Sept. 18, 1990) (unpublished per curiam).
In June 1995, Bemis filed the instant section 2255 motion, which the
District Court summarily denied. We will affirm the District Court only
if, upon de novo review, we are persuaded that "'the motion and the files
and records of the case conclusively show that [Bemis] is entitled to no
relief.'" See Holloway v. United States, 960 F.2d 1348, 1351 (8th Cir.
1992) (quoting 28 U.S.C. § 2255). We address each of Bemis's claims in
turn.
First, Bemis contends that his convictions together with civil
forfeitures of his property violated the Double Jeopardy Clause's
prohibition against multiple punishments for the same offense. We
conclude, however, that this claim is foreclosed by United States v.
Ursery, 116 S. Ct. 2135, 2147-49 (1996), and United States v. One 1970
36.9' Columbia Sailing Boat, 91 F.3d 1053, 1056-57 (8th Cir. 1996).
Second, Bemis argues that his attorney was constitutionally
ineffective, because he incorrectly advised Bemis regarding Bemis's likely
Guidelines sentence and failed to move to withdraw Bemis's guilty plea
after learning that the presentence report recommended a higher Guidelines
sentence. It is unnecessary to reach a decision as to his attorney's
competency because we conclude that Bemis failed to establish prejudice.
A challenge to a guilty plea on the grounds of ineffective assistance of
counsel requires a showing of reasonable probability that, but for
counsel's errors, an individual would not have pleaded guilty and instead
would have insisted on going to trial. See Schone v. Purkett, 15 F.3d 785,
789 (8th Cir. 1994). There was no such showing based on Bemis's
contentions because the District Court told Bemis during his plea hearing
that the sentencing recommendation in the plea agreement was not binding,
that the statutory maximum sentence for his offenses was twenty years, and
that the Guidelines would be used to
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determine his sentence. Cf. United States v. Burney, 75 F.3d 442, 444-45
(8th Cir. 1996) (defendant's misunderstanding of application of Guidelines
to his sentencing does not constitute a fair and just reason for
withdrawing a guilty plea, even where such misunderstanding is based on an
erroneous estimation by defense counsel, so long as defendant was told the
range of potential punishment and that the Guidelines would be applied to
determine his sentence). Additionally, both the plea agreement and the
prosecutor's comments at the plea hearing informed Bemis that his
Guidelines sentence could be affected by the results of the presentence
investigation. Cf. United States v. Ludwig, 972 F.2d 948, 950-51 (8th Cir.
1992) (fact that sentence recommended in presentence report substantially
exceeded both prosecutor's and defense counsel's calculations of likely
sentence at time of plea agreement did not warrant withdrawal of plea where
plea agreement was specific in its terms and promised no certain sentencing
range).
Third, Bemis contends that his attorney developed a conflict of
interest when he accepted illegal drug proceeds as payment for Bemis's
legal fees. The government argues that this claim fails because there is
no evidence that Bemis's attorney was ever criminally investigated for
accepting the proceeds. See Cuyler v. Sullivan, 446 U.S. 335, 350 (1980)
(to establish ineffective assistance of counsel claim, defendant must show
actual conflict of interest that adversely affected his attorney's
performance). However, Bemis offered evidence that an informant gave the
government a statement describing how the informant retrieved the drug
proceeds for Bemis's attorney and that Bemis's attorney was aware of the
informant's statement to the government. We believe this evidence at least
raises the possibility that, as Bemis contends, his attorney encouraged him
to plead guilty to avoid government inquiry about the source of the fees,
see 21 U.S.C. § 881(a)(6) (1994) (forfeiture of drug proceeds); United
States v. Bowie, 892 F.2d 1494, 1500 (10th Cir. 1990) (counsel's
performance
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is adversely affected by actual conflict of interest if defendant's
interests are inherently in conflict with counsel's personal interests),
and we do not believe the affidavit of Bemis's attorney was sufficient to
negate this possibility. Consequently, we remand this claim for an
evidentiary hearing. See Bowie, 892 F.2d at 1500-02 (10th Cir. 1990) (when
district court fails to conduct inquiry into possible conflicts, court of
appeals should remand for evidentiary hearing if it can discern from the
record the possibility of actual conflict with adverse effects). On
remand, the District Court should grant Bemis's request for discovery of
his attorney's files.
Bemis also argues that the District Court impermissibly
"participated" in plea discussions; that his attorney, the prosecutor, the
probation officer, and the District Court "promised" him a seventy-eight-
month sentence; that the District Court denied him the opportunity to reply
to the government's response; and that the District Court should not have
accepted the government's out-of-time response. These arguments are
without merit.
Accordingly, we reverse as to Bemis's claim that his attorney had a
conflict of interest, and remand for an evidentiary hearing. As to Bemis's
remaining claims, we affirm the District Court's denial of section 2255
relief.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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