NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 18-3574 __________

DANNY BANNOUT, Appellant

v.

UNITED STATES OF AMERICA ____________________________________

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 2-13-cv-05188) District Judge: Honorable William H. Walls ____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a) April 14, 2021 Before: CHAGARES, PHIPPS and COWEN, Circuit Judges

(Opinion filed: May 17, 2021) ___________

OPINION* ___________

PER CURIAM

Danny Bannout appeals from an order of the United States District Court for the

District of New Jersey, which denied his motion to vacate sentence filed under 28 U.S.C.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. § 2255. We granted a certificate of appealability (“COA”) on his claim that his attorney

provided ineffective assistance during the plea process, including (1) that his attorney

coerced him into rejecting the plea offer(s) that had binding stipulations; (2) that his

attorney failed to advise him of the substantial benefits of accepting the plea offers with

the binding stipulations; and (3) that his attorney failed to present him with the second

plea offer. See

(c)(2); Buck v. Davis,

(2017); see

also Missouri v. Frye,

(2012); United States v. Bui,

(3d Cir. 2015). For the reasons that follow, we will affirm the District Court’s judgment.

I.

Danny Bannout pleaded guilty to two counts of a multi-defendant, multi-count

indictment: conspiracy to obstruct interstate commerce by armed robbery in violation of

(a), and transportation of stolen goods in interstate commerce in

violation of

. He was sentenced to 190 months in prison. We affirmed

his conviction and sentence on direct appeal. See United States v. Bannout, C.A. No. 11-

4209,

(3d Cir. 2013). In August 2013, Bannout filed a pro se motion

under

, raising the issue for which we granted a COA, and two other

claims.1

Bannout’s first claim is based on the following. Bannout was indicted on June 22,

2010. He retained Harry Batchelder to represent him. Batchelder sent him a plea

1 The other two claims were: appellate counsel was ineffective for failing to argue a sentence disparity with an identically situated codefendant (Bannout’s brother, Alen, sometimes spelled “Alan”); and post-plea sentencing enhancements violated Bannout’s jury-trial right and his due process rights. Because we did not grant a COA on those

2 agreement offer dated June 24, 2010, which contained factual stipulations (including that

“[a] firearm was brandished or possessed in connection with this offense,” and that “[a]t

least one person was physically restrained to facilitate commission of this offense”), but

no sentencing calculations. Dkt. #1-1 at 29 of 47.2 Batchelder’s cover letter to Bannout

stated, “They certainly don’t waste time and I can tell you for starters there are provisions

contained in that agreement that I will not let you sign.” Dkt. #1-1 at 2 of 47.

A second plea agreement offer is dated July 26, 2010. It contained the same

factual stipulations, but it also contained sentencing calculations, including a statement

that “[t]he parties further agree that a sentence within the Guidelines range that results

from the agreed total Guidelines offense level of 30 is reasonable,” and that “[t]he parties

agree not to seek or argue for any upward or downward departures not set forth herein.”

Dkt. #1-1 at 39-40 of 47. Bannout alleges that Batchelder never told him about or

showed him this offer, and that he was only aware of it when he received his files from

appellate counsel. The sentencing range under the second offer would have been 108 to

135 months of imprisonment.

A third offer, which Bannout accepted, was an open plea—it included no factual

or sentencing stipulations. As noted, Bannout was sentenced to 190 months in prison. In

his § 2255 motion, Bannout claimed that his attorney was ineffective for failing to

claims, we will discuss only the first claim. 2 We refer to these exhibits and the exhibits attached to Bannout’s COA application using the electronic page numbers assigned by CM/ECF.

3 convey the second offer to him and for failing to explain why accepting a plea offer with

stipulations would be beneficial.3

The Government responded in opposition to Bannout’s § 2255 motion and

Bannout replied. The District Court then scheduled an evidentiary hearing, “limited to

trial counsel’s actions during plea negotiations.” Dkt. #30.4 Following the hearing, the

District Court announced its decision from the bench. COA Exhibits at 85-88. The

District Court did not find Bannout’s testimony credible and concluded that Bannout was

aware of the second plea offer and had rejected it. The Court “dismiss[ed] th[e] motion

as practically being frivolous.” Id. at 88. The Court entered an order that dismissed the

petition with prejudice and declined to issue a COA. Dkt. #56.

Bannout timely appealed and we granted a COA on one claim, as noted. The

appeal is now fully briefed.

II.

We have jurisdiction under

and 2253. In a § 2255 proceeding,

we exercise plenary review over the District Court’s legal conclusions and apply a clear

error standard to its findings of fact. United States v. Travillion,

(3d

Cir. 2014). We first consider the scope of this appeal. The Government allows that

Bannout’s § 2255 motion presented a claim under Frye—that his attorney failed to

inform him about a plea offer. But the Government argues that Bannout failed to raise a

3 As discussed below, the Government argues that Bannout failed to properly raise in the District Court the latter aspect of the claim. 4 The District Court appointed counsel, but after two attorneys either failed to communicate with Bannout or failed to make progress in the case (according to Bannout),

4 claim under Lafler v. Cooper,

(2012)—that his attorney gave him

deficient advice about the plea offer(s). The Government argues that Bannout “waived”

his Lafler claim by failing to properly present it to the District Court. Appellee’s Br. at

24.5

We agree. Bannout, who was proceeding pro se at the time, focused his

memorandum of law in support of his § 2255 motion on an argument that his attorney

failed to communicate the second plea offer to him. While Bannout did state in the

memorandum that Batchelder’s “refus[al] to stipulate” to stipulations “resulted in [an]

exponentially higher sentence,” see Memorandum of Law at 7-8, Dkt. #1 at 17-18 of 30,

we do not construe that passing reference as an argument that Batchelder failed to advise

Bannout of the advantage of accepting a plea with binding stipulations.

Bannout did not directly reference Batchelder’s failure to explain the benefits of

stipulations until Bannout’s reply to the Government’s answer and his affidavit in

support. Dkt. #27 at 23 of 38. But even though soon thereafter Bannout was represented

by counsel, he did not seek the Court’s permission to amend his § 2255 motion to include

a Lafler claim. And at the evidentiary hearing, when the District Court cut off

questioning over what advice Batchelder may have given to Bannout about the offers, see

COA Ex. at 46-48, Bannout’s attorney did not challenge that ruling.6 We conclude that

Bannout hired a private attorney to represent him at the hearing. 5 Although the Government used the term “waived,” we believe it meant to argue that Bannout forfeited the claim by failing to raise it at the appropriate time. See Barna v. Bd. of Sch. Directors of Panther Valley Sch. Dist.,

(3d Cir. 2017) (explaining difference between waiver and forfeiture). 6 The District Court clarified that the sole question was whether Batchelder had

5 Bannout forfeited any claim under Lafler by not properly raising the issue in the District

Court. We thus will not address that aspect of Bannout’s claim. Simko v. United States

Steel Corp, No. 20-1091, ---F.3d---,

, at *5 (3d Cir. Mar. 29, 2021)

(explaining that we will not address a forfeited argument on appeal absent “truly

exceptional circumstances” (internal quotation marks and citation omitted)).

The Government also appears to argue that Bannout forfeited his claim that

Batchelder “coerced” him to reject plea offers containing stipulations, which “would have

been a Sixth Amendment autonomy claim” under McCoy v. Louisiana,

(2018). Appellee’s Br. at 14-15. In McCoy, the Supreme Court reiterated that

“[s]ome decisions . . . are reserved for the client—notably, whether to plead guilty, waive

the right to a jury trial, testify in one's own behalf, and forgo an appeal,” id.at 1508, and

that if an attorney overrides his client’s decision, that constitutes structural error,

. Bannout’s memorandum of law in support of his § 2255 motion clearly set out an

“autonomy” claim: “to the extent that it was Mr. Batchelder, and not the defendant, who

was the deciding factor in accepting or rejecting the government’s plea offers, that

conduct in itself falls squarely within the heartland of Strickland’s deficient performance

prong.” Memorandum of Law at 10, Dkt. #1 at 20 of 30.

presented the second offer to Bannout. Id. at 47 (“I only interrupt you because you are not before me because of alleged ineffective assistance of Counsel. You are here because you allege that your client knew nothing of . . . the suggested plea agreement number 2. You are not here because of alleged ineffective assistance of counsel.”). See also id. at 79. Similarly, the decision from the bench addressed only the District Court’s determination that Batchelder had presented the second offer to Bannout.

6 We thus consider two of the three aspects of Bannout’s claim: (1) that Batchelder

coerced him into rejecting the plea offer(s) that had binding stipulations; and (2) that

Batchelder failed to present Bannout with the second plea offer.

III.

As noted, the District Court found that Batchelder had presented Bannout with the

second plea offer and that Bannout had rejected it. Some evidence weighs against those

findings, see COA Ex. at 47-57,7 but we cannot say that the findings are “clearly

erroneous.” See United States v. Gambino,

, 1071 n.3 (3d Cir. 1988)

(stating that witness credibility determinations are to be accepted unless clearly

erroneous); see also Hill v. Beyer,

(3d Cir. 1995) (“Our judicial system

affords deference to the finder of fact who hears live testimony of witnesses because of

the opportunity to judge the credibility of those witnesses.”).

Similarly, the District Court’s apparent finding that Batchelder did not “coerce”

Bannout to accept a particular plea offer is not clearly erroneous. At the end of the

evidentiary hearing, just before announcing its decision, the District Court cut off the

Government’s closing argument about its contention that Batchelder properly let Bannout

7 Batchelder sent the first and third plea offers to Bannout with cover letters; there was no cover letter for the second plea offer. Prison logs reflect that Batchelder visited Bannout at the prison to discuss the first and third offers; he did not visit him at the time of the second offer. And Batchelder’s evidentiary hearing testimony was somewhat contradictory. He testified that he believed he sent the second plea offer without a cover letter, or that he conveyed the offer over the phone (although he normally would not do so on a recorded prison line), or that he may have spoken to Bannout about the second offer just before a reverse proffer session (at which time the third plea offer was already extant).

7 make the decisions regarding the plea offers. The District Court said that it was “not

concerned about that,” because “[e]very lawyer, whether he or she be experienced or

fresh out of law school, knows that it is the client’s call.” COA Ex. at 84. There is some

evidence that Batchelder might have stepped a bit over the line in his representation—

Batchelder’s cover letter for the first plea offer states, “there are provisions in that

agreement that I will not let you sign,” Dkt. #1-1 at 2 (emphasis added), and the cover

letter for the third plea offer states, “I had another round of negotiations as I did not like

the stipulation in the last agreement that you knew a gun was brandished, that someone

was restrained, and that you were a manager. I refused to stipulate to these items.” Dkt.

#1-1 at 4 of 47 (emphasis added). But we do not find this evidence strong enough to

require a finding that Batchelder coerced Bannout into a decision, or that he failed to

abide by Bannout’s wishes.

For these reasons, we will affirm the District Court’s judgment. We address the

parties’ pending motions in the margin.8

8 Appellee’s motion to file a supplemental appendix, App. Dkt. #51, is granted. Bannout’s motion to seal the Government’s brief, App. Dkt. #61, is granted. The Government’s unredacted brief, App. Dkt. #52, as well as Bannout’s motion, App. Dkt. #51, shall be sealed for a period of 25 years. See 3d Cir. L.A.R. Misc. 106.1(c). The Government’s redacted brief, App. Dkt. #69, will remain available on the public docket.

8