United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 5, 2013 Decided March 1, 2013
No. 11-3018
UNITED STATES OF AMERICA,
APPELLEE
v.
COOLERIDGE BELL, ALSO KNOWN AS COOLRIDGE BELL, ALSO
KNOWN AS CARLTON BELL,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:07-cr-00153-6)
Richard A. Portale argued the cause and filed the brief
for appellant.
Trevor N. McFadden, Assistant U.S. Attorney, argued
the cause for appellee. With him on the brief were Ronald C.
Machen, Jr., U.S. Attorney, and Elizabeth Trosman,
Chrisellen R. Kolb, John Han, and Anthony Scarpelli,
Assistant U.S. Attorneys.
Before: HENDERSON and GRIFFITH, Circuit Judges,
and WILLIAMS, Senior Circuit Judge.
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Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Following a jury trial,
appellant Cooleridge Bell was convicted of conspiring to
possess and distribute one kilogram or more of PCP in
violation of 21 U.S.C. §§ 846, 841(a)(1) and 841(b)(1)(A)(iv).
The district court sentenced Bell to 235 months of
imprisonment and five years of supervised release. On
appeal, Bell claims his trial and sentencing were defective in
several respects. In this opinion we address only Bell’s
assertion of ineffective assistance of counsel; his other claims,
relating to various trial rulings of the district court, are
addressed and rejected in an order issued today. We remand
the ineffective assistance of counsel claim for consideration
by the district court.
* * *
Bell’s ineffective assistance claim turns on two alleged
deficiencies in his counsel’s performance, both of which relate
to the “safety valve” provision of the U.S. Sentencing
Guidelines. See USSG § 5C1.2. The safety valve authorizes
a sentencing judge to impose a term of imprisonment lower
than a statutory minimum if the defendant meets five specified
qualifications, one of which is “truthfully provid[ing] to the
Government all information and evidence the defendant has
concerning [his] offense or offenses.” Id. A defendant who
qualifies for the safety valve is also entitled to a two-point
reduction in his offense level. Id. § 2D1.1(b)(16).
The district court determined that Bell was ineligible for a
sentence reduction under the safety valve because he failed to
provide the government the information required—or, indeed,
any information at all about the offense. Bell does not
dispute that he declined to cooperate; rather, he asserts that his
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counsel neglected to inform him that such cooperation likely
would have resulted in a lower sentence. Bell also alleges that
his lawyer erred in failing to request a continuance at Bell’s
sentencing hearing after it became apparent that he had never
informed Bell of the safety valve. Bell claims that his
counsel’s inaction deprived him of his Sixth Amendment right
to effective representation, see Strickland v. Washington, 466
U.S. 668 (1984), and requests a remand to the district court to
pursue his claim.
At the sentencing, when the court referred to the safety
valve and Bell’s apparent ineligibility, Bell spoke up to assert
that he had heard of the safety valve from fellow prisoners,
“[b]ut my lawyer before him [sic], I never heard of no safety
valve.” Joint Appendix (“J.A.”) 486. Bell’s counsel did not
dispute the assertion, but said he had told Bell that the court
would be interested in Bell’s information about his offenses,
“and that it was more likely than not that his changing his
position on talking to people about these background matters
would be beneficial.” Id. at 475.
The government argues that the record leaves excessive
doubt whether Bell “actually was in the dark about the safety
valve.” Gov’t Br. at 41 (quoting United States v. Holland,
117 F.3d 589, 596 (D.C. Cir. 1997)). It also notes the district
court’s recognition of powerful record evidence of Bell’s
overall lack of cooperative spirit, manifested most
prominently in his refusal to discuss with the probation officer
even innocuous issues such as his education or employment
skills, but also in his adamant insistence on his innocence.
J.A. at 473-75. Consistent with that general outlook, Bell
denied to the court any knowledge of co-conspirators. Id. at
482-83. From this the government infers that no additional
information about the safety valve would ever have induced
Bell to supply the information needed to earn its benefits.
Accordingly, the government says, Bell has failed to establish
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facts necessary to show “prejudice” as required by Strickland,
i.e., “that there [was] a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different,” 466 U.S. at 694.
The Supreme Court has said that the district court is “the
forum best suited to developing the facts necessary to
determining the adequacy of representation during an entire
trial,” and that “ineffective-assistance claims ordinarily will
be litigated in the first instance” before a trial judge,
preferably the same judge who presided over the defendant’s
trial. Massaro v. United States, 538 U.S. 500, 505-06 (2003).
In keeping with that view, we have held that where a
defendant raises a “colorable and previously unexplored”
ineffective assistance claim on appeal, United States v.
Rashad, 331 F.3d 908, 908 (D.C. Cir. 2003), we remand
unless the “record alone conclusively shows that the
defendant either is or is not entitled to relief,” id. at 909-10
(internal quotations removed). See also United States v.
Mohammed, 693 F.3d 192, 202-203 (D.C. Cir. 2010).
Here it cannot be said that Bell has pointed to record facts
that, if established without contradiction in a hearing, would
conclusively entitle him to a re-sentencing. His admission
that he had heard other prisoners use the term “safety valve,”
and his resolve not to share information with the authorities,
raise serious doubt on the prejudice requirement.
But Rashad’s call for remand of a “colorable and
previously unexplored” claim of ineffective assistance is
clearly not limited to cases where the record alone shows a
Strickland violation. Otherwise, Rashad’s separate category
for instances where the “record alone conclusively shows that
the defendant . . . is . . . entitled to relief”—meaning remand is
not required—would make no sense.
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We note that the normal appellate process gives the
defendant no chance to submit affidavits; on appeal we are
limited to the record in the district court. For that reason
alone, we find quite irrelevant the government’s insistence
that “even now, with the benefit of appellate counsel,
appellant does not state he would in fact truthfully debrief.”
Gov’t Br. at 42.
Both Rashad’s use of “colorable” to describe the sort of
claim adequate to trigger a remand, and Massaro’s message
that the district court should hear ineffective assistance claims
in the first instance because it is in the best position to develop
the factual record, see Massaro, 538 U.S. at 505, point to
remands when the record discloses a genuine possibility of
ineffective assistance.
In Bell’s case, the record supports neither a conclusive
determination that his ineffective assistance claim will
succeed, nor one that it must fail. Counsel’s advice that “it
was more likely than not that . . . talking to people . . . would
be beneficial” is a pale substitute for a precise description of
the safety valve’s potential impact—a two-point reduction in
Bell’s offense level, and a consequent reduction in his
sentencing range from 235-293 months to 188-235 months.
(The statutory minimum of ten years of imprisonment for
Bell’s offenses is a good deal lower than both of these ranges
and so is not pertinent here.) Thus the record evidence
suggests a serious possibility that counsel was ineffective,
with prejudice to Bell. Exploration of the issue in district
court can resolve the uncertainty.
Bell notes that it is the general practice of this circuit to
remand an inconclusive ineffective assistance claim for an
evidentiary hearing. App. Br. 12. We have said as much in
our cases, see Rashad, 331 F.3d at 909, but that proposition
does not mean a defendant is entitled to a hearing any time the
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court orders a remand. Rather, we remand for whatever
proceedings are necessary to determine whether the defendant
was denied his constitutional right to effective assistance of
counsel, which may in some circumstances include an
evidentiary hearing, but in other cases will not. As Massaro
indicates, the district court’s familiarity with the trial and
sentencing proceedings may play a useful role.
* * *
We have considered all of Bell’s arguments, and remand
the record to the district court for further proceedings to
determine whether Bell was denied effective assistance of
counsel. For the reasons stated in the accompanying order,
we conclude that Bell's other claims lack merit.
So ordered.