Turner-ing Over a New Leaf: Pre-Charge Plea Negotiations as a Critical Stage for the Purposes of the Sixth Amendment Right to Counsel
Turner-ing Over a New Leaf: Pre-Charge Plea Negotiations as a Critical Stage for the Purposes of the Sixth Amendment Right to Counsel
Alexis Berglund 0 1 2
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1 Alexis Berglund, Turner-ing Over a New Leaf: Pre-Charge Plea Negotiations as a Critical Stage for the Purposes of the Sixth Amendment Right to Counsel , 59 B.C.L. Rev. E. Supp. 188, 2018
2 Boston College Law School
Part of the Constitutional Law Commons; and the Criminal Procedure Commons
1 See U.S. CONST. amend. VI; Strickland v. Washington, 466 U.S. 668, 684–85 (1984)
(recognizing the Sixth Amendment right to counsel).
2 Missouri v. Frye, 566 U.S. 134, 140 (2012)(the right to the effective assistance of counsel
applies at all critical stages of criminal proceeding;ss)ee Kirby v. Illinois, 406 U.S. 682, 689
(1972) (finding that critical stages includfeormal charges, preliminary hearings, indictments,
information, or arraignments). An information is when a defendant is charged without a grand jury
indictment. Information, LAW.COM, http://dictionary.law.com/Default.aspx?selected=953 [https://
3 See Kirby, 406 U.S. at 688 (finding that the Sixth Amendment right to counsel attaches at or
after the initiation of “adversary judicial proceedings”).
4 See, e.g., United States v. Hayes, 231 F.3d 663, 675 (9th Cir. 2000) (holding that without
being “the subject of a formal charge, preliminary hearing, indictment, information or
arraignment,” the Sixth Amendment does not apply, including when a defendant, who has not been
formally accused, is a target of a grand jury investigation); Roberts v. Maine, 48 F.3d 1287, 1291 (1st
Cir. 1995) (recognizing that the right to counsel could conceivably attach prior to formal charges,
indictment, or arraignment in extremely limited circumstances when the government crosses the
line from fac-tfinder to adversary); United States v. Heinz, 983 F.2d 609, 612 (5th Cir. 1993)
(finding that “the Sixth Amendment right to counsel does not attach until or after the time formal
tice, this bright-line rule effectively means that the right to counsel does not
attach until after formal charges have been filed.5 In 2017, the U.S. Court of
Appeals for the Sixth Circuit in Turner v. United States (Turner I) followed
circuit precedent in applying this bright-line rule to conclude that the
defendant lacked a valid claim for the ineffective assistance of counseel- b
cause he did not have the righto counsel during pre-charge plea
negotiations.6 Shortly after the Sixth Circuit decided Turner I, the court vacated its
opinion and granted a rehearingen banc, indicating that the Sixth Circuit
might reconsider the facts of Turner I and align its reasoning with the other
Circuits that interpret Supreme Court precedent to allow for t-he
indictment attachment of the Sixth Amendment right to cou7nTsehli.s
Comment argues that pre-charge plea negotiations analogous to those that
occurred in Turner I are a critical stage where the Sixth Amendment right to
counsel should attach.8 Part I of this Comment provides the factual and
procedural background for Turner I.9 Part II considers the differing opinions
about when the Sixth Amendment right to counsel attache,s with some
circuits adhering to a bright-line rule and othercircuits carving out
excpetions.10 Part III argues that the Sixth Amendment right to counsel should
attach during pre-charge plea-bargaining because it is a critical stage for
purposes of the Sixth Amendment. 11
I. FACTUAL AND PROCEDURAL HISTORY OF TURNER V. UNITED STATES
Section A of this Part will establish the relevant factual background of
Turner I.12 Section B of this Part will provide Turner I’s procedural history.13
A. Factual Background
On October 3, 2007, John Turner robbed four businesses at gunpoint in
Memphis, Tennessee and was later arrested by a state officer working on a
federal-state anticrime task force.14 Turner retained attorney Mark
McDaniel for the state proceedings and was indcited under Tennessee law for four
counts of aggravated robbery.15 These state charges were resolved through a
plea agreement in March 2009.16 At some point during the summer of 2008,
while McDaniel was still representing Turner on the state charges, a distrcit
attorney informed McDaniel that theU.S. Attorney’s Office intended to
bring federal charges, arising from the same incidecnes, against Turner.17
Assistant United States Attorney (“AUSA”) Tony Arvin told McDaniel that
he would offer Turner a plea deal of fifteen years on the federal charges,so
long as Turner accepted the offer before the federal indictment we-as r
turned.18 McDaniel contended that he presented the federal plea deal to
Turner in a timely manner, but Turner rejected it.19 Turner subsequently
discharged McDaniel and hired new representation2.0 A new AUSA was also
assigned to Turner’s case.21 The best plea deal Turner’s new attorney could
negotiate with the new AUSA was a twenty-five-year sentence for the
federal charges.22 Turner accepted the deal and pled guilty to the federal
charges in the U.S. District Court for the Western District of Tennessee23. As a
condition of the plea agreement, Turner waived his right to a direct appeal.24
B. Procedural History
In 2012, Turner filed a motio nto vacate or set asidehis conviction
based on a claim that his attorney for the state proceedings,
MarkMcDaniel, provided ineffective assistance of counsel duringthe federal plea
negotiations.25 The government argued that counsel could not be
ineffectivebecause Turner had no rightto counsel during the plea negotiations that
occurred prior to the filing offormal charges.26 The district court agreed and
denied Turner’s motion without ruling on the merits, holding that the right
to counsel had not attached during the fedeprarel-charge plea
negotiations.27 The U.S. Court of Appeals for the Sixth Circuit upheld the district
court’s decision, as required by circuit preceden2t8. Two months later, the
Sixth Circuit vacated the decision and granted a rehearing en banc.29 Turner
I has since been restored to the docket as a pending appeal.30
22 Id. Turner pled guilty to four counts of robbery affecting commerce in violation of the
Hobbs Act and one count of using and carrying a firearm in furtherance of a violent crime.Id.
II. LEGAL FRAMEWORK FOR WHEN THE SIXTH AMENDMENT
RIGHT TO COUNSEL ATTACHES
The Sixth Amendment affords the accused the right to the assistance of
counsel for his or her defense in all criminal prosecutions3.1 The assistance
of counsel is a safeguard that the U.S. Supreme Court has deemed necessary
to ensure the fundamental rights of life and liberty, and is so vital in the
daversarial trial system that without it justice cannot be don3e2.Because the
skills and knowledge of an attorney are necessary to ensure a fair trial and
just results, the right to counsel is only satisfied when the assistance of
counsel is effective.33 The point at which a defendant is entitled to the
effective assistance of counsel depends on whether the Sixth Amendment right to
counsel has attached at a given stage of the criminal proceeding.34 Section A
of this Part details the bright-line rule, which has been used to determine
whether a defendant’s right to counsel has attached.35 Section B of this Part
discusses how circuit courts have interpreted and applied this bri-glhinte
rule.36 Section C of this Part addresses the right to counsel specifically as it
pertains to plea negotiations.37
A. The Bright-Line Rule for the Right to Counsel
The Supreme Court has held that the Sixth Amendment right to
counsel only attaches at “critical” stages of criminal proceedings that occur “at
or after the time that adversary judicial proceedingshave been initiated.”38
A stage is considered critical when the government has committed itself to
prosecute, thereby establishing its adverse position against the defendant, and
the defendant is faced with the“intricacies of criminal law”.39 The Supreme
Court has interpreted the Sixth Amendment right to counsel to not attach until
after formal charges have been filed.40 This method for determining when the
right to counsel attaches is often referred to by courts sacnhdolars as a
bright-line rule.41 Supreme Court justices, circuit courts,and scholars have
failed, however, to reach a consensusregarding at what stages the Sixth
Amendment right to counsel attaches.42
It is currently ambiguous whether the right to counsel can attach prior
to the filing of formalcharges.43 Although the Supreme Court has
consistently held that the right to counsel does not attach until the initiation of
daversarial judicial proceedings, the Court in 1964 in Escobedo v. Illinois
recognized the right to counsel for defendants pre-indictment but post-arrest.44
39 Kirby, 406 U.S. at 689–90; see Moran v. Burbine, 475 U.S. 412, 432(1986) (finding that
only when the government establishes an accusatory and adversarial position against the defendant
does the defendant need assistance from someone with knowledge of the complexities of the law).
40 See Moran, 475 U.S. at 431 (interpreting Supreme Court case law to affirmthat the Sixth
Amendment right to counsel does not attach until after the filing of formal charges).
41 See Turner I, 848 F.3d at 770–71; Steven J. Mulroy,The Bright Line’s Dark Side:
PreCharge Attachment of the Sixth Amendment Right to Counsel, 92 WASH. L. REV. 213, 215 (2017)
(noting that the brigh-tline rule for the Sixth Amendment right to counsel is traceable Utonited
States v. Gouveia, 467 U.S. 180 (1984), and compels either a formal charge or an appearance
before a judge to trigger the right).
42 Compare United States v. Hayes, 231 F.3d 663, 676(9th Cir. 2000) (holding that the
defendant did not have a Sixth Amendment right to counsel during a prein-dictment deposition
becuase he was not formally charged at the timew),ith Matteo v. Superintendent, SCI Albion, 171
F.3d 877, 892–93 (3d Cir. 1999) (holding that the defendant had a Sixth Amendment right to
counsel during prec-harge conversations, reasoning that theright to counsel is not necessarily
predicated on a formal charge but rather on when the defendant is confronted by a judicial
adversary). See Mulroy, supra note 41, at 216–17 (noting that currently five circuit courts, including the
D.C. Circuit, abide by the brigh-tline rule and four circuits have rejected the rule in some for m.)
The court in Brewer v. Williams stated, “[w]hatever else it may mean, the right to counsel granted
by the Sixth and Fourteenth Amendments meansat least that a person is entitled to the help of a
lawyer at or after the time that judicial proceedings have been initiated againshtim—‘whether by
way of formal charge, preliminary hearing, indictment, information, or arraignme’n”t.430 U.S.
387, 398 (1977) (quoting Kirby, 406 U.S. at 689) (emphasis added). According to Justice Stevens
in his Gouveia concurrence, this statement does not foreclose the possibility that the right to
counsel may under certain circumstances attach prior to the initiation of judicial proceedings. 467 U.S.
at 193 (Stevens, J., concurring). Justice Stevens was convinced that theGouveia majority adopted
a broader rule than was obligated by precedentin finding that the right to counsel attachesonly at
or after the initiation of criminal proceedings.Id. Justice Stevens did not join the opinion of the
Court in part because he did not believe that this broad interpretation was justified by prior cases.
43 See Turner I, 848 F.3d at 770–71.
44 See Escobedo v. Illinois, 378 U.S. 478, 490–91 (1964). But see Moran, 475 U.S. at 429–30
(reasoning that Escobedo’s Sixth Amendment analysis was not only dictum, but it also supported
an understanding that theMoran court considered it to be in conflict with theU.S. Supreme
Court). In Escobedo, the Court held that the Sixth Amendment right to counsel attaches
preindictment, but post-arrest, during interrogations. See 378 U.S. at 490–91. The Court determined
Lower courts have also raised concerns about the implications of the
brightline rule, including instances when the accused must navigate the
adversarial judicial system before formal charges are filed.45 In fact, circuit courts are
split as to whether the right to counsel can attach pirned-ictment.46 Some
circuits, including the U.S. Court of Appeals for the Sixth Circuit, follow
the bright-line rule.47 Other circuits have moved away from upholding this
rigid test.48 How courts approach this issue can have serious consequences,
considering a defendant’s right to trial can be at stake during-cphraerge
stages, and absent counsel the average defendant is not readily able to na
vigate the process on his or her own.49
that this point in time was a critical stage where the assistance of counsel is vital, as evidenced by
the many confessions that are obtained by law enforcement during this periSoede. id. at 488.
Considering the interrogation stage is one that law enforcement uses to obtain confessions, it is
critical that the accused is provided counselS.ee id. Escobedo has since been interpreted by the
U.S. Supreme Court to be a Fifth Amendment case, despite its multiple references to the Sixth
Amendment. See Moran, 475 U.S. at 429–30; Mulroy, supra note 41, at 225. Its criticism of the
rigidity of the pre-or post-formal charge distinction, however, is nonetheless relevant. See Mulroy,
supra note 41, at 225–26. Numerous cases have since reaffirmed that the Sixth Amendment right
to counsel does not attach until after the initiation of judicial proceedingsS.ee Gouveia, 467 U.S.
at 188; Estelle v. Smith, 451 U.S. 454, 469–470 (1981); Moore v. Illinois, 434 U.S. 220, 2262–7
(1977); Brewer, 430 U.S. at 398–99.
45 See Turner I, 848 F.3d at 773 (the bright-line rule does not allow for the“realities of
present-day prosecutions and their heavy reliance on plea bargaining”;) United States v. Moody, 206
F.3d 609, 614 (6th Cir. 2000) (uphldoing the bright-line rule even though“the facts so clearly
demonstrate that the rights protected by the Sixth Amendment are endangeredw”hen a suspect
was denied counsel during pre-indictment plea negotiations).
46 Turner I, 848 F.3d at 771. Compare Kennedy v. United States, 756 F.3d 492, 493 (6th Cir.
2014) (holding that the defendant did not have a right to counsel during pre-indictment plea
negotiations, thereby affirming that the Sixth Amendment right to counsel does not attach until formal
charges have been filed), with Roberts v. Maine, 48 F.3d 1287, 1290–91 (1st Cir. 1995)
(interpreting Supreme Court jurisprudence to allow for limited exceptions to the bri-glhinte rule, such as
when the government has shifted from investigator to accuser).
47 See, e.g., Moody, 206 F.3d at 614 (holding that the Sixth Amendment right to counsel does
not attach until after the filing of formal charges). Similarly, the U.CSo.urt of Appeals for the
Fifth Circuit held that“the Sixth Amendment right to counsel does not attach uilntor after the
time formal adversary judicial proceedings havebeen initiated.” United States v. Heinz, 983 F.2d
609, 612 (5th Cir. 1993). Further, the United States Court of Appeals for the Ninth Circuit held
that a defendant was not protected by the Sixth Amendment when he was a target of a grand jury
investigation, without having been arrested, because he was no“tthe subject of a formal charge,
preliminary hearing, indictment, information or arraignment”. Hayes, 231 F.3d at 675.See
generally Mulroy, supra note 41.
48 See Roberts, 48 F.3d at 1291 (recognizing that the right to counsel could conceivably attach
prior to formal charges, indictment, or arraignment in extremely limited circumstances when the
government crosses the line from fact-finder to adversary); Chrisco v. Shafran, 507 F.Supp. 1312,
1319 (D. Del. 1981) (concludingthat there are scenarios when the Sixth Amendment right to
counsel can attach prior to the filing of formal charges, including plea negotiations
thdaetmonstrate the government is committed to prosecution, establishing the governmen’ts adversary
49 See Turner I, 848 F.3d at 773 (finding that the average defendant is ill-equipped to navigate
the complexities of the plea process and sentencing guidelines on his or her owPanm);ela R.
B. Circuit Court Support for the Attachment of the Sixth Amendment
Right to Counsel Prior to Formal Charges
Four circuit courts, as well as multiple district courts, break from the
bright-line rule and suggest that the Sixth Amendment right to counsel may
exist prior to the filing of formal charges.50 The U.S. Court of Appeals for the
Seventh Circuit has acknowledged the opportunity for the Sixth Amendment
right to counsel to attach pre-charge.51 In 1992, in United States v. Larkin, the
Seventh Circuit addressed the question of whether a defendant has a right to
counsel during a pre-indictment lineup.52 The Larkin court determined that
in light of U.S. Supreme Court precedent there was a presumption that the
right to counsel does not attach at p-riendictment line-ups; that
presumption, however, could be rebutted if the government had crossed the line
from fact-finder to adversary. 53
Similarly, in 1995 the U.S. Court of Appeals for the First Circuit in
Roberts v. Maine recognized that the right to counsel could conceivably
attach prior to formal charges when the government crosses the line from
fact-finder to adversary5.4 The First Circuit acknowledged that there are
very limited circumstances where this line is crossed, but the mere fact that
the court left open the possibility is an indicator that although a brig-hltine
rule has traditionally been used, exceptions exis5t5. Therefore, if the
government has taken an adversarial position, the Sixth Amendment right to
counsel could conceivably attach prior to formal charges.56
Metzger, Beyond the Bright Line: A Contemporary Right-to-Counsel Doctrine, 97 NW. U. L. REV.
1635, 1666 (2003) (arguing that it is unlikely that individuals who enter into prceh-arge
negotiations without counsel understand the risks of providing certain information during conversations
nor are uncounseled individuals likely to understand the federal sentencing system or what
protections to ask for);Minix, supra note 24, at 556 (noting that whendefendants enter a guilty plea,
they surrender their constitutional right to trial by jury); James SM. ontana & John A.Galotto,
Right to Counsel: Courts Adhere to Brigh-tLine Limits, 16 CRIM. JUST., Summer 2011, at 4, 12
(arguing that the federal sentencing guidelines incentivize pre-indictment plea bargaining).
50 See infra notes 51–63 and accompanying text; see also Mulroy, supra note 41 (providing a
general overview of case law thatsupports attaching the Sixth Amendment right to counsel prior
to the filing of formal charges).
51 United States v. Larkin, 978 F.2d 964, 969 (7th Cir. 1992).
53 Id. The right to counsel only attaches when the government is seeking to gain incriminating
evidence, and not when information is being gathered in a“nonadversarial atmosphere.” See
United States ex rel. Hall v. Lane, 804 F.2d 79, 8–283 (7th Cir. 1986) (quoting DeAngelo v.
Wnaiwright, 781 F.2d 1516, 1520 (11th Cir. 1986)).
54 See Roberts, 48 F.3d at 1290–91 (holding that a defendant who was not allowed to call his
attorney before a pre-charge blood/alcohol test did not have a Sixth Amendment right to counsel
because the government was not committed to prosecuting him at that time).
55 See id.
56 See id. (recognizing the possibility that a defendant could have a pre-charge right to counsel
if the government has shifted from investigator to accuse;r)Larkin, 978 F.2d at 969(reasoning
that a defendant who was denied counsel during a prei-ndictment lineup could rebut the
The U.S. Court of Appeals for the Fourth Circuit also interpretsu-S
preme Court precedent to not necessarily require a formal charge before the
Sixth Amendment right to counsel attache57s. Rather, in 1998 in United
States v. Burgess, the Fourth Circuit interpretedthe Supreme Court’s 1977
decision in Moore v. Illinois not to require an indictment to indicate the
initiation of criminal proceedings, but rather held that the right to counselt-a
taches at the point that the government is committed to prosecution.58
Comparably, the U.S. Court of Appeals for the Third Circuit held that
the right to counsel may attach at stages that occur prior to the filing of
formal charges.59 In the Third Circuit, the critical triggeringpoint for the
Sixth Amendment right to counsel is the moment that a defendant is “faced
with the prosecutorial forces of organized society, and[is] immersed in the
intricacies of substantive and procedural criminal law.”60 In 1999, in Matteo
v. Superintendent, SCI Albion, the defendant was brought into custody
without a formal indictment or thefiling of an information6.1 The Matteo
court found that in this scenario the right to counsel had attached when the
defendant was arrested because he was confronted by the “organizeed- r
sources of an ongoing police investigation,” even though he hnaodt yet
been formally charged.62
Collectively, the reasoning of these fouCrircuits establishes support
for the Sixth Amendment right to counsel prior to formal charges at points
when the accused is faced with the intricacies of crinimal law, when the
government has taken up an adversarial position, and/or when the govne-r
ment has committed itself to prosecution.63
tion of no right to counsel by showing that the government took on an adversarial position at that
57 See United States v. Burgess, No. 96-4505, 1998 U.S. App. LEXIS 6515, at *3–4 (4th Cir.
Mar. 30, 1998) (holding that a defendant was not entitled to counsel during a po-satrrest but
preindictment lineup where he was identified as a bank robbery suspect).
58 See id. (reasoning that Supreme Court precedent does not require an indictment to indicate
when criminal proceedings havebeen initiated but rather the right to counsel attaches when the
government has solidified its adversarial position)s;ee also Moore, 434 U.S. at 228 (reasoning
that it is an incorrect interpretation ofKirby to find that the right to counsel only attaches after a
defendant is indicted).
59 See Matteo, 171 F.3d at 892–93.
60 See id. (quoting Kirby, 406 U.S. at 689). In Matteo, the court held that the defendant was
faced with adversarial prosecutorial forces, and his Sixth Amendment right to counsel attached,
when his phone conversations were recorded while he was in prison as a result of an arrest
warrant, even though an information had not yet been filed, nor did he have a preliminary hearing or
arraignment. Id. at 893–94.
61 Id. at 893–94.
62 See id. at 893.
63 See supra notes 50–62 and accompanying text.
C. The Sixth Amendment Right to Counsel and Plea Negotiations
Whereas circuit courts differ as to whether there is a Sixth Amendment
right to counsel during p-rceharge plea negotiations, theU.S. Supreme
Court has held that the right to counsel extends to plea negotiations
generally.64 For the purposes of the Sixth Amendment, the negotiation anc-d a
ceptance of a plea deal is considered a critical stage.65 Plea negotiations are
central to the criminal justice system, and the accused has a right to counsel
during these critical stages.66 In fact, about ninety-five percent of all
criminal convictions are the result of plea deals.67 Also, the criticality of plea
negotiations is not entirely dependent on whether the negotiation takes place
before or after a formal charge6.8 For example, in the Sixth Circuit, if the
acceptance or rejection of a plea offer would affect whether a defendant
would be prosecuted in federal court in addition to state cour,t then the
defendant has the right to the effective assistance of counsel during those
negotiations, even if they occur prior to the filing of federal charges.69
Multiple district courts across the country have also held that thet-a
tachment of the Sixth Amendment right to counsel during plea negotiations
can occur pre-charge.70 In Chrisco v. Shafran, the U.S. District Court for the
64 Lafler v. Cooper, 566 U.S. 156, 162 (2012) (reasoning that the accused has a Sixth
Amendment right to counsel during critical pretrial stages, including ple-baargaining); Padilla v.
Kentucky, 559 U.S. 356, 373 (2010)(stating that “the negotiation of a plea bargainis a critical
phase . . . for purposes of the Sixth Amendment”).
65 See Lafler, 566 U.S. at 162; Padilla, 559 U.S. at 373.
66 See Frye, 566 U.S. at 143;Moody, 206 F.3d at 616 (Wiseman, J., concurring)“(plea
bargaining is central to federal criminal law”). The Frye Court noted that defendants whose cases go
to trial often receive longer sentences than those who enterinto a plea bargain because the longer
sentences exist for the purposeof facilitating plea-bargains. 566 U.S. at 144. TheFrye Court also
reaffirmed the sentiment that the American criminal justice system is“saystem of pleas, not a
system of trials,” supporting the argument that the negotiation of a plea bargain is a critical stage
for a defendant. See id. at 143.
67 DEP’T OF JUSTICE, NCJ226846, FELONY SENTENCES IN STATE COURTS, 2006–
STATISTICAL TABLES 1 (2010) (finding that 94% of defendants sentenced in state courts pled
guilty); Dep’t of Justice, Criminal Defendants Disposed of in U.S. DistrictCourts, SOURCEBOOK
OF CRIMINAL JUSTICE STATISTICS ONLINE (May 22, 2009) [hereinafterDOJ SOURCEBOOK],
https://www.albany.edu/sourcebook/pdf/t5222009.pdf [https://perma.cc/S5PP-CMVQ] (finding
that 97% of sentenced federal defendants pled guilty).
68 See United States v. Morris, 470 F.3d 596, 602–03 (6th Cir. 2006) (holding that an
ineffective assistance of counsel claim is valid when a defendant was offered a plea deal in state court
that included the dropping of federal charges, prior to the defendant having been formally charged
with federal charges).
69 See id. (holding that the defendant was denied the effective assistance of counsel when he
was required to make an immediate decision on a state plea deal, without his attorney present, the
rejection of which would cause him to be referred to federal court pursuant to a joint statef-ederal
70 See United States v. Wilson, 719 F.Supp. 2d 1260, 1267–68 (D. Or. 2010) (holding that a
defendant has the right to counsel when he is offered a specific plea deal that would require him to
forfeit his right to a trial pre-indictment); United States v. Busse, 814 F. Supp. 760, 764 (E.D. Wis.
District of Delaware relied on Judge Wiseman’s often-cited United States v.
Sikora dissent to support this position.71 Judge Wiseman, and subsequently
the district court, reasoned that plea negotiations are evidence, in and of
themselves, that the government is committed to prosecution, and that
adversarial position can be established whether or not the accused is formally
charged.72 The district court also cited the American Bar Association’s
position that plea negotiations should be engaged in through defense counsel in
order to support the court’s finding that counsel should be present during
plea negotiations, including those that are entered into prior to the filing of
The U.S. District Court for the Eastern District of Wisconsin also
recognized the ability for the right to counsel to attach during instances when pr-e
charge plea negotiations are entered into by retained counse74l. Further, the
U.S. District Court for the District of Oregon recognized a Sixth Amde-n
ment right to counsel during p-rceharge plea negotiations when the
government has established an adversarial position and shown that it is
committed to prosecution.75
III. THE SIXTH AMENDMENT RIGHT TO COUNSEL SHOULD ATTACH
DURING PRE-CHARGE PLEA NEGOTIATIONS
The bright-line rule, as it is currently interpreted and applied,
effectively disenfranchises defendants who are confronted by adversarial
proceedings prior to formal charges, such as during pr-echarge plea negotiations.76
Scenarios like these often arise during joint federa-lstate taskforce
prosecu1993) (finding that the defendant successfully asserted an ineffective assistance of counsel claim
when the prosecutor engaged in prceh-arge plea negotiations with his attorne;y)Chrisco, 507
F. Supp. at 1319 (reasoning that the Sixth Amendment right to counsel can attach prior to the
filing of formal charges, including to “plea negotiations which occur prior to the commencement
of adversary judicial proceedings”).
71 Chrisco, 507 F. Supp. at 1319 (citing United States v. Sikora, 635 F.2d 1175, 1180 (6th Cir.
1980) (Wiseman, J., dissenting)).
73 Id. See ABA STANDARDS FOR CRIMINAL JUSTICE PLEAS OF GUILTY Standards 14-1.3(a),
14-3.1(a) (3d ed. 1999) (arguing that defendants should be given an opportunity to retain counsel
before entering into a guilty plea and prosecuting attorneys are generally expected to engage in
plea negotiations with defendant’s counsel).
74 See Busse, 814 F.Supp. at 763–64 (holding that the defendant had a Sixth Amendment
right to counsel during pre-charge plea negotiations that were entered into with his attorney).
75 See Wilson, 719 F.Supp. 2d at 1267. The court found that the government sufficiently
established its adversarial position and commitment to prosecution when it told the defendant he
was going to be indicted and then presented him with a specific plea bargain that would have
resulted in a prison sentence and surrendering his constitutional right to a trial. Id.
76 See Turner I, 848 F.3d 767, 773(6th Cir. 2017) (finding that plea negotiations are a
substantial component of the criminal justice system and defendants are generall-yeqiulipped to
handle the plea negotiation process on their own).
tions, where plea negotiations can result in deals that involve both state and
federal charges even though a defendant has only been chargedat either the
state or federal level.77 This is the scenario that played out in Turner v. United
States (Turner I).78 The criminal justice system relies heavily on plea
negotiations, and U.S. Supreme Court precedent does not preclude the inclusion of
pre-charge plea negotiations as critical stages for the purposes othfe Sixth
Amendment right to counsel. 79 This Part will argue that the right to counsel
extends to pr-echarge plea negotiations, and therefore, upon rehearing
Turner I en banc, the U.S. Court of Appeals for the Sixth Circuit should find
that the defendant’s right to counsel had attached during the federal
pleaengotiations that occurred prior to the defendant being formallycharged in
The plea negotiation process is adversarial, and regardless of whether
it occurs before or after a defendant is charged, the accusedgenerally does
not have the legal skill to handle the process on his or her own without the
assistance of counsel.81 As such, many courts have recognized the brig-ht
line rule for a defendant’s right to counsel is not in touch with the current
realities of the criminal justice system’s heavy reliance - on
bargaining.82 This rings especially true as pre-indictment plea-bargaining
becomes more common with the increased use of joint fede-rsatalte task
forces, which can result ininitial prosecution in either the state or federal
court system prior to charges being broughitn the other.83 The bright-line
rule effectively disefnranchises defendants who have not been formally
charged, but who are nonetheless faced wiht what some district and circuit
77 See Mulroy, supra note 41, at 217 & n.28 (noting that the rise in joint federa-lstate
taskforces has made pre-indictment plea negotiations common in scenarios when a defendant is charged
in one court system but has not been prosecuted in the other);see, e.g., Turner I, 848 F.3d at 768–69
(noting that the defendant was charged in state court as a result of a joint fe-dsteartael anticrime
taskforce and was later offered a plea deal for the federal charges prior to the filing of formal
78 See Turner I, 848 F.3d at 768.
79 See United States v. Gouveia, 467 U.S. 180, 193 (1984) (Stevens, J., concurring). See
generally Mulroy, supra note 41, at 219–28 (arguing that the proper understanding of Supreme Court
precedent does not preclude the recognition of the attachment of the right to counsel prior to
80 See infra notes 81–117 and accompanying text.
81 Turner I, 848 F.3d at 773 (finding that defendants cannot be expected to navigate the plea
bargaining process on their own when the complexity of the federal sentencing guidelines can
even confound attorneys).
82 See id. In Moody, the court concluded that it is obligated to follow precedent, whiceh- r
quired the application of the brigh-tline rule. United States v.Moody, 206 F.3d 609, 614–15 (6th
Cir. 2000). However, the court stated in dictum that it does not favor the bri-glhinte rule in part
because the very existence of a plea deal (the government offering a specific sentence for a
specfiic offense) in and of itself establishes the adverse position of the government, regardless of
whehter a formal charge has been filed. See id. at 615–16.
83 See Mulroy, supra note 41, at 217 & n.28.
courts have appropriately described as adversarial prosecutorial forces.84 In
scenarios such as the one encountered by the defendantin Turner I, it is an
injustice to deny an individual counsel when the government enters into
plea negotiations before filing formal charges.85
In response to this lack of a right to counsel at a stage considerebdy
many in the legal field to becritical, the Sixth Circuit has urged the
uSpreme Court to reconsider the brigh-tline test for the right to the assistance
of counsel several times over the pastthirty-five years.86 It would not be
far-fetched for the Supreme Court to do so either.87 The Supreme Court has
previously held that the assistance of counsel is a guaranteed right when
adversarial proceedings have begun against the accuse;dproceedings that
will ultimately seal their fate8.8 Plea negotiations often lead to a plea deal,
84 See Turner I, 848 F.3d at 773;Moody, 206 F.3d at 61–516; Chrisco v. Shafran, 507 F.
Supp. 1312, 1319 (D. Del. 1981(o)bserving that plea bargaining indicates the government’s
commitment to prosecution, which combined with the importance of counsel during those
negotiations can trigger the right to counsel because the negotiations indicate the adverse position of the
government comparable to that of when formal charges are filed). InUnited States v. Wilson, the
prosecutor engaged in pre-indictment negotiations with the defendant’s attorney and later testified
that it would have been “unfair” to meet with the defendant without coun7s1e9l. F. Supp. 2d
1260, 1267 (D. Or. 2010). The court held that the defendant’s Sixth Amendment right to counsel
had attached during the pre-indictment plea negotiation because it would be unjust for the vg-o
ernment to later claim the defendant had no right to counsel after conducting plea negotiations that
solidified the government’s adverse position. See id.
85 See Turner I, 848 F.3d at 773; Moody, 206 F.3d at 615–16; Wilson, 719 F. Supp. 2d at 1268
(finding that a determination that a defendant does not have the right to counsel during
preindictment plea negotiations “may be more damaging than a denial of effective assistance at trial
itself”). In United States v. Busse, the government claimed the defendant had no right to counsel
when the prosecutor entered into pcreh-arge plea negotiations with defendant’s attorney8.14
F. Supp. 760, 763–64 (E.D. Wis. 1993). The court held that the defendant’s Sixth Amendment
right to counsel did attach at the time of those negotiations, reasoning that because the government
and defendant relied on the prosecutor’s representations it would be unjust to later allow the
gvoernment claim that the negotiations were not adversarial judicial proceedingSse.e id.; Metzger,
supra note 49, at 1699 n.228 (acknowledging that finding no right to counsel during pcrhea-rge
plea bargaining seems unjust).
86 See Turner I, 848 F.3d at 773 (quoting United States v. Sikora, 635 F.2d 1175, 1182(6th
Cir. 1980) (Wiseman, J., dissenting) (reiterating that“those persons who enter the plea bargaining
process before formal charges have been filed should have the protection of the Sixth Adm- en
ment” because they are “just as surely faced with the ‘prosecutorial forces of organized society’ as
the defendant who has been formally introduced to the syste m”); Moody, 206 F.3d at 618
(Wiseman, J., concurring) (urging the Supreme Court to reconsider the bright-line rule).
87 See Lafler v. Cooper, 566 U.S.156, 177 (2012) (Scalia, J., dissenting) (acknowledging the
right to counsel extends to any point where a defendan’ts ability to access a fair trial is hindered,
regardless of whether it is a formal or informal stage); Mulroy, supra note 41, at 219–28 (arguing
that Supreme Court precedent does not preclude the attachment of the right to counsel prior to the
filing of a formal charge in certain circumstances).
88 See Gouveia, 467 U.S. at 187 (finding that defendants only have a right to counsealt“or
after the initiation of adversary judicial proceeding”s); United States v. Wade, 388 U.S. 218, 224
(1967) (finding that proceedings that “may well settle the accused’s fate and reduce the trial itself
to a mere formality” are critical stages for the purposes of the Sixth Amendmen.tT) he historical
the result of whichwill also seal the accused’s fate8.9 The Supreme Court
has held that the Sixth Amendment right to counsel attaches at points that a
defendant is faced with an adversarial confrontation that can ultimately strip
him of his liberties9.0 Thus, the Sixth Amendment right to counsel should
attach during pre-charge plea negotiations, where a defendant is faced with
an adversarial confrontation that can deprive him of his right to a trial.91
Courts have observed that adopting a position that deviates from the
bright-line rule would be a move away from certainty and clarity by br-lu
ring the lines of an otherwise steadfast rule.92 Nonetheless, when a rule
consistently has implications antagonistic to justice and fairness, it is an
appropriate time to reconsider whether that rule continues to be wor9k3able.
Scholars have recently considered peaxnding the brigh-tline rule in e-r
sponse to the unjust implications of its rigidity, arguing for included
protecpurpose of the Sixth Amendment was to assure assistance at trial, which has been expanded to
include certain critical pre-trial prosecutorial proceedings as the criminal justice system evolves.
United States v. Ash, 413 U.S. 300, 309–10 (1973). The expansion of the historical interpretation
of the right to counsel is thus possible when new contexts that could seal the accused’s fate arise.
See id. at 317 (considering whether to expand the right to counsel to include witness photo
89 See Mulroy, supra note 41, at 222–23.
90 See Coleman v. Alabama, 399 U.S. 1, 7 (1970) (finding that the right to counsel is
guaranteed when the absence of such counsel could inhibit the accused’s right to a fair trial)W;ade, 388
U.S. at 225 (finding that the Sixth Amendment right to counsel applies at points “where certain
rights might be sacrificed or lost”);Sikora, 635 F.2d at 1181 (Wiseman, J., dissenting) (reasoning
that plea bargains are critical stages because the fundamental right to a triiasl at stake); Wilson,
719 F. Supp. 2d at 1267.
91 See Coleman, 399 U.S. at 7 (finding that the determination of whether the right to counsel
has attached requires an analysis of whether the defendant’s rights would be substantially pur-ej
diced and if counsel would “help avoid that prejudice”);Wade, 388 U.S. at 226 (finding that if the
accused’s right to a fair trial is at stake he or she has the right to counsel regardless of whether the
prosecutorial stage is formal or informal)S;ikora, 635 F.2d at 1181 (Wiseman, J., dissenting);
Wilson, 719 F. Supp. 2d at 1267; Mulroy, supra note 41, at 222–23 (noting that plea negotiations,
whether pre or post indictment, may lead to a plea that would result in the accused’s forfeiture of
his or her right to trial).
92 See United States v. Hayes, 231 F.3d 663, 675 (9th Cir. 2000) (reasoning against adding
pre-indictment proceedings to the brig-hltine rule, claiming it would no longer make the rule
“clean and clear”). Steadfast rules enable the Supreme Court to promote uniformity and
predicatbility among lower courts despite risks associated with inflexibility and potentially arbitrary
outcomes. Michael Coenen, Rules Against Rulification, 124 YALE L.J. 644, 646 (2014).
93 See Ash, 413 U.S. at 310–11, 317 (finding that when the criminal justice system evolves the
Sixth Amendment right to counsel can expand with itM); oody, 206 F.3d at 618(Wiseman, J.,
concurring) (urging the Supreme Court to reconsider when the Sixth Amendment right to counsel
attaches, arguing defendants should be entitled to counsel when faced with “a complicated
proecdural system and a more knowledgeable adversary” during prien-dictment plea bargaining); see,
e.g., Montana & Galotto supra, note 49, at 11–12 (arguing that the bright-line rule for the right to
counsel inadequately protects the accused in prien-dictment stages and thus the Supreme Court
should consider “freeing” lower courts from its constraints).
tions during certain pre-indictment stages.94 The inclusion of pre-charge plea
negotiations would fit neatly into this category, upholding the valued ability
for a defendant to retain counsel when faced with a judicial adversary.95
Many circuit and district courts have interpreted Supreme Court
precedent to allow for the attachment of the right to counsel in certain instances
prior to the filing of formal charges, including pre-indictment plea
negotiations.96 Of the courts that have upheld a brig-hltine rule for the right to
counsel, some have nevertheless acknowledged the pitfalls of doing so97.
Justice Stevens in hisGouveia concurrence argued that niterpreting
precedent as supporting a steadfast brig-hltine rule would be an unnecessarily
broad interpretation.98 Justice Stevens argued that it was possible for the Sixth
Amendment right to counsel to attach before the filing of formal charge9s9.
Additionally, Judge Wiseman of the Sixth Circuit argued in hisUnited States
v. Sikora dissent for an acknowledgement of pr-echarge Sixth Amendment
rights, arguing that stages such as plea negotiations are critical because of
what is at stake: the possibility of surrendering constitutional rights or
liberties.100 The circuit court in Turner I has previously stated that the plea
process is adversarial in nature and found fault in the circuit precedent that it
was obliged to follow1.01 Turner I echoed United States v. Moody’s
sentiments that the brigh-tline test in these instances is a “triumph of the letter
over the spirit of the law,” because ofefring a plea deal is evidence of the
government’s commitment to prosecution.102
94 See Mulroy, supra note 41, at 241 (arguing the right to counsel should attach when a
prosecutor interacts with the accused directly or via counsel about the substance of his or her case);
Brandon K. Breslow, Signs of Life in the Supreme Court’s Uncharted Territory: Why the Right to
Effective Assistance of Counsel Should Attach to P-rInedictment Plea Bargaining, FED. LAW.,
Oct./Nov. 2015, at 34, 38–39 (arguing that the right to the effective assistance of counsel should
attach to all plea negotiations, whether they occur pre or post indictment); Montana & Galotto
supra, note 49, at 12 (arguing the right to counsel should attach at critical prien-dictment stages
such as during federal plea bargaining).
95 See Mulroy, supra note 41, at 227–28, 241. Mulroy argued for an expansion of the brigh-t
line rule to “include those instances in which a prosecutor has contact with a suspect about the
substance of the case (other than as a witness), either directly or through cou”nsIedl. at 241.
Mulroy articulates that plea-bargaining clearly falls within this proposed rule. Id.
96 See supra notes 50–63, 69–75.
97 See Turner I, 848 F.3d at 773 (refusing to overrule circuit precedent despite acknowledging
that doing so would mean the accused may have to navigate the pr-eindictment plea negotiation
process on their own); Moody 206 F.3d at 615–16 (raising concerns about the court’s precedential
obilgation to follow the brigh-tline approach to the right to counsel because plea negotiations establish
the adverse position of the government, regardless of whether they occur pre-indictment).
98 Gouveia, 467 U.S. at 193 (Stevens, J., concurring).
100 Sikora, 635 F.2d at 1181 (Wiseman, J., dissenting).
101 See Turner I, 848 F.3d at 773 (following circuit precedence despite recognizing the
consequences of and inflexibility of a bright-line rule for when the right to counsel attaches).
102 Id. at 771.
As a result of a plea bargain, the accused may surrender their
constitutional right to a trial, and the deciding factor for whetherhe or she has the
assistance of competent counsel should not be whetherplea negotiations
occur before or after a formal charge.103 Relying on the presence or absence
of formal charges as the deciding factor unfairly allows, and perhaps even
incentivizes, the government to take the opportunity to circumvent
constitutional protections.104 Adversarial plea negotiations that occur at times the
government has shown its commitment to prosecution should be considered
critical stages for the purposes of the Sixth Amendment, and as such, the
right to counsel should attach, even if it is pre-charge.105
In Turner I, the court acknowledged the potential injustice of not
recognizing a pre-charge right to counsel during plea negotiation1s06. There, the
defendant was already facing conviction on state charges when he wafs- o
fered a federal plea deal, prior to federal charges having been formally
filed.107 Two different attorneys represented Turner during the negotiation
process, and the fact that these two skilled professionals negotiated very df-i
ferent deals shows that the skillset of the negotiator plays an important role in
the plea-bargain process.108 If the defendant had no right to counsel at this
stage, he could have faced those negotiations on his own10.9 The sentencing
guidelines are complicated enough for a professional tonavigate; it is
unreasonable to expect a person without legal training to navigate them alone.110
Additionally, the Sixth Circuit has continued to maintain for decades
that finding no right to counsel in scenarios comparable toTurner I is
unjust.111 The Turner I court even referred to plea negotiations as critical
stages of the criminal process, regardless of whether formal charges have been
filed.112 The court further articulated that the plea negotiation process is
adversarial in nature, and the brigh-tline rule does not take into consideration
the reality that the criminal justice system heavily relies o-nbarp-lea
gaining.113 Without a right to counsel at these stages the burden is
effectively placed on ill-equipped defendants to fend for themselves against
prosecutors.114 Considering that ninety-seven percent of federal convictions are the
result of a plea deal, it would be unjust to not afford counsel at a time that,
in and of itself, reflects the government’s commitment to prosecut1i1o5n.
Thus, the Sixth Circuit correctly vacated their opinion in Turner I, and the
court en banc should rule that the Sixth Amendment right to counsel had
attached during the plea negotiations that occurred prior to Turner being
formally federally charged.116 The U.S. Supreme Court should also consider
accepting certiorari on this particular matter, if applied for, to clarify that
the right to counsel attaches during pre-charge plea negotiations.117
fendant being formally federally charged.United States v. Morris,470 F.3d 596, 603 (6th Cir.
2006). The Turner I court distinguished itself from Morris because the plea offered to the
defendant in Morris was to determine which court the defendant would be prosecuted in, state or federal,
compared to Turner I where the defendant was being prosecuted on state and federal chargesn-i
dependent from one another. Turner I, 848 F.3d at 772. The Turner I court nonetheless recognized
that this line of reasoning negatively impacts defendants who are facing charges in both federal
and state courts, because without the assistance of counsel a defendant is forced to navigate the
complex federal sentencing guidelines on his or her ownI.d. at 773. Also, federal-state
prosecutions are increasingly more abundant making it more difficult to identify exactly when charges are
formally filed for the purposes of the Sixth Amendment. Id.
111 See Turner I, 848 F.3d at 773; Mulroy, supra note 41, at 217 (noting that the Sixth Circuit
has criticized the bright-line rule it is obliged to uphold).
112 Turner I, 848 F.3d at 773.
113 Id.; see Mulroy, supra note 41, at 234 (citing Turner I’s position that the bright-line rule is
out of touch with the realities of the modern criminal justice system as an explanation for why
many circuits have departed from the rule).
114 See Turner I, 848 F.3d at 773; Metzger, supra note 49, at 1666–68 (arguing that the
brightline rule cannot guarantee fairness for individuals who engage in pre-charge plea negotiations, and
that those who do so without counsel may unwittingly harm their case going forward when faced
with a prosecutor who holds significantly more legal knowledge).
115 See Missouri v. Frye, 566 U.S. 134, 143(2012); Moody, 206 F.3d at 615–16; Sikora, 635
F.2d at 1181 (Wiseman, J., dissenting); DOJ SOURCEBOOK, supra note 67.
116 See supra notes 76–115 and accompanying text.
117 See Moody, 206 F.3d at 618 (Wiseman J., concurring)S.ee supra notes 76–113 and
The decision of theU.S. Court of Appeals for the Sixth Circuit
toerhear Turner v. United Statescould result in the overruling of theCircuit’s
precedential adherence to the bright-line rule and allow for the recognition
that the Sixth Amendment right to counsel attaches to pre-charge plea
negotiations. If so, it would be an example of a circuit court expressly
recognziing a Sixth Amendment right to pre-charge counsel, and not just the
posisbility of that right. Regardless of Turner’s final outcome, this is an issue that
would be ripe for the U.S. Supreme Court to consider. It is in the interest of
fairness and justice for both the Sixth Circuit and the Supreme Court to
recognize the right to counsel during pre-charge plea negotiations. During these
negotiations, a defendant is faced with the adversarial forces ohfet judicial
system and, without counsel, would be left to navigate sentencing guidelines
and adversarial confrontations without any prior relevant knowledge or skills.
When an individual is faced with an adversarial foe(the government)
looking to exchange a particular sentence for a certain offense, there is sufficient
evidence to support the proposition that the government is committed to
prosecution. To assert otherwise would be to say that the government
spends its time and resources engaging in ple-abargain conversations with
individuals whom it is not seriously considering prosecuting. Considering
that ninety-seven percent of federal convictions are the result of plea
negotiations, it is likely that the government engages in plea-bargaining because
it is the most efficient method of obtaining convictions; and the accused
should have the right to counsel during the process through which the gs-i
nificant majority of defendants are convicted and ultimately forgo their
constitutional right to a trial.
24 Id. A waiver of a right to appealbars a defendant from being able to appeal part of his or her conviction, often including his or her sentence . Leanna C. Minix,Examining Rule 11(b)(1)(n) Error: Guilty Pleas, Appellate Waiver, and Dominguez Benit,ez74 WASH . & LEE L. REV . 551 , 553 ( 2017 ). Although the use of appellate waivers in guilty pleas is increasingly more common, and all circuits have upheld waivers as constitutional, it is not without some hesitationS . ee id. at 566 ( noting that debates over the use of appellate waivers in guilty pleas include balancing issues of efficiency and fairness). A former U.S. federal judge argued that a defendant should not be able to use their right to appeal as a bargaining chip, citing concerns about the unequal power balance between defendants and prosecutors. Nancy Gertner,Having the Right to Appeal Is an Issue of Far-i ness , N.Y. Times (Feb. 4 , 2016 , 6 :36 PM),https://www.nytimes.com/roomfordebate/2012/08/19/doprosecutors-have -too-much-power/having-the-right-to-appeal-is-an-issue-of-fairness [https//:perma. cc/PP8Z-J2RM] .
25 Turner I , 848 F. 3d 769. Turner's motion to vacate or set aside his conviction was filed pursuant to 28 U .S.C. § 2255 . Id . at 768. Ineffective assistance of counsel claims are generally not raised on direct appeal but are properly raised on a motion to vacate under 28 U .S.C. 2 § 255 . See United States v. Maddox , 69 FA. pp'x 663 , 665 - 66 ( 6th Cir . 2003 ) (holding a defendant who waived his right to appeal properly asserted his ineffective assistance of counsel claim in a motion to vacate his sentence under 28 U .S.C. § 2255 ).
26 Turner I , 848 F.3d at 768.
28 Id. at 773. The district court relied onMoody to draw its conclusion inTurner I. Id. The Moody court upheld the bright-line test, holding that the Sixth Amendment right to counsel does not attach until after the filing of formal charges . Moody, 206 F.3d at 614.
29 Turner II , 865 F.3d at 338.
30 Id. at 339.
31 Strickland v. Washington, 466 U.S. 668 , 685 ( 1984 ). See generally Mary Fan, Adversarial Justice's Casualties: Defending Victim-Witness Protection , 55 B.C. L. REV . 775 , 794 ( 2014 ) (indicating that the right to counsel arose as a response to the historical imbalances of power between defendant and state ).
32 Gideon v. Wainwright , 372 U.S. 335 , 343 ( 1963 ). The role of counsel is so crucial that defendants accused of federal or state crimes have the right to appointed counsel if they are unable to afford to retain their own . Strickland , 466 U.S. at 685.
33 Strickland, 466 U.S. at 685-86.
34 See Missouri v. Frye , 566 U.S. 134 , 318 ( 2012 ) (finding that the right to counsel and the right to the effective assistance of counsel are intertwined)S;trickland, 466 U.S. at 686 (finding that “the right to counsel is the right to the effective assistance of couns”el(quoting McMann v . Richardson , 397 U.S. 759 , 771 n. 14 ( 1970 )); Turner I , 848 F.3d 767 , 773 ( 6th Cir . 2017 ) (holding that a defendant who did not have a Sixth Amendment right to counsel was not entitled to an eivdentiary hearing for his ineffective assistance of counsel claim).
35 See infra notes 38-49 and accompanying text.
36 See infra notes 50-63 and accompanying text.
37 See infra notes 64-75 and accompanying text.
38 Montejo v. Louisiana , 556 U.S. 778 , 786 ( 2009 ); Kirby v . Illinois , 406 U.S. 682 , 688 ( 1972 ). Critical stages can exist beyond the trial itself, and some may occur pre-tria .lSee, e.g., Argersinger v . Hamlin , 407 U.S. 25 , 34 ( 1972 ) (holding that counsel is needed for guilty pleas);Hamilton v . Alabama , 368 U.S. 52 , 54 - 55 ( 1961 ) (holding that an arraignment is a critical stage in state criminal proceedings, and the accused is entitled to counsel during arraignment).
103 See Lafler , 566 U.S. at 177 (Scalia, J., dissenting); Gouveia, 467 U.S. at 189; Moody, 206 F.3d at 618; Chrisco, 507 F. Supp . at 1319.
104 See Busse , 814 F. Supp . at 764; Wilson, 719 F. Supp . 2d at 1267 (holding that the government cannot claim that the defendant had no right to counsel even though the prosecutor did not think it would be fair to meet with the defendant without counsel) . If there is no right to counsel during pre-charge plea negotiations then hypothetically the prosecutor could hold off on charging the accused to prolong the period that he or she could legally be without counsSeel . e Gouveia , 467 U.S. at 191 ( acknowledging that it is a legitimate concern that the government may delay formal charges, and therefore the appointment of counsel, to develop its case against the accused, but asserting that such an incident would not implicate the right counsel ).
105 See Sikora , 635 F. 2d at 1180 (Wiseman , J. dissenting);Wilson, 719 F. Supp . 2d at 1267; Busse, 814 F. Supp . at 764; supra notes 76-104 and accompanying text.
106 See Turner I , 848 F.3d at 773.
107 Id. at 768-69.
108 See id . at 769. A variety of factors can influence the outcome of a plea negotiation, including the defense attorney's personal motivations, their ability to use a negotiation style that is compatible with their personality, the amount of effort the attorney is willing to expend, and even the defendant's attitude towards the charge . See generally Rodney J. Uphoff , The Criminal Defense Lawyer as Effective Negotiator: A Systemic Approach, 2 CLINICAL L . REV. 73 ( 1995 ).
109 See Turner I , 848 F.3d at 769.
110 See id . at 773; Moody 206 F. 3d at 616 (Wiseman , J., concurring) (observing the complexity of the sentencing guidelines). The defendant inTurner I cited United States v. Morris to argue that there is an exception to the brig-hltine rule for defendants who enter into plea negotiations when faced with both state and federal charges prior to formally being charged in federal court . Turner I, 848 F.3d at 772 . In Morris, the court found the right to counsel attached when a defendant was offered a plea deal in state court that included dropping federal charges , prior to the de-