NOT RECOMMENDED FOR PUBLICATION
                                File Name: 23a0412n.06

                                        Case No. 21-5733
                                                                                       FILED
                          UNITED STATES COURT OF APPEALS                         Sep 22, 2023
                               FOR THE SIXTH CIRCUIT                         DEBORAH S. HUNT, Clerk


                                                      )
AWEIS HAJI-MOHAMED,
                                                      )
       Petitioner-Appellant,                          )        ON APPEAL FROM THE
                                                      )        UNITED STATES DISTRICT
v.                                                    )        COURT FOR THE MIDDLE
                                                      )        DISTRICT OF TENNESSEE
UNITED STATES OF AMERICA,                             )
       Respondent-Appellee.                           )
                                                      )                                 OPINION

Before: BATCHELDER, BUSH, and DAVIS, Circuit Judges.

       DAVIS, Circuit Judge. Petitioner Aweis Haji-Mohamed is a federal prisoner who seeks to

vacate, set aside or correct his conviction and sentence pursuant to 

 for two

offenses involving the illegal use of firearms. This appeal revolves around a singular mistake that

carried through from Haji-Mohamed’s guilty plea to his sentencing. Specifically, at his plea

hearing, the district court informed Haji-Mohammad, and his plea documents reflected, that he

faced a statutory mandatory minimum sentence of 35 years’ imprisonment. But this information

was wrong. His correctly calculated statutory-minimum sentence was 32 years. Haji-Mohamed

pleaded guilty to two of the nineteen counts brought against him after reaching a plea agreement

with the government that called for a sentence of 35 years’ imprisonment. Consistent with the

plea agreement, he received a sentence of 35 years. Haji-Mohamed now claims his attorney was

ineffective in failing to (1) raise the minimum-sentence-calculation error during an earlier motion

to withdraw his guilty plea and (2) advise him that the error provided meritorious grounds for
No. 21-5733, Haji-Mohamed v. United States


appeal. He also insists that his guilty plea was rendered involuntary and unintelligent due to the

mistaken information he received about the mandatory-minimum sentence.                      Because

Haji-Mohamed cannot demonstrate the requisite prejudice to sustain his claims and he has

procedurally defaulted on the latter claim, he cannot meet his burden for collateral relief. We

therefore affirm the decision of the district court.

                                                   I.

       In the early months of 2015, Haji-Mohamed was involved in a series of criminal episodes

in and around two public housing developments in Nashville, Tennessee that ultimately led to

charges against him in both state and federal court.        In particular, Haji-Mohamed and his

confederates perpetrated several armed robberies against individuals and at least one area business,

brandishing and in more than one instance, firing pistols during the course of these activities.

Things came to a head when local law enforcement arrested Haji-Mohamed for the murder of

Isaiah Starks in 2015. A federal grand jury handed down indictments against Haji-Mohamed and

others for offenses ranging from robbery and conspiracy to commit robbery in violation of the

Hobbs Act, 

, et seq., to a variety of firearm offenses. Altogether, Haji-Mohamed

faced 19 federal felony charges as well as a first-degree murder charge for Starks’s death in

Tennessee state court.

       Following global plea negotiations to resolve both the federal and state charges against

him, Haji-Mohamed pleaded guilty to Counts 8 and 13 of the federal indictment. These two counts

charged him with discharging a firearm during and in relation to a crime of violence and

brandishing a firearm during and in relation to a crime of violence in violation of 

(c)(1)(A)(iii) and (ii) respectively. At the plea hearing, the parties submitted a plea petition




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No. 21-5733, Haji-Mohamed v. United States


and a plea agreement pursuant to Fed. R. Crim. P. 11(c)(1)(C) (“C-Plea”).1 The documents

correctly identified the maximum sentence as imprisonment for life for both counts, but they each

contained incorrect information about Haji-Mohamed’s statutory minimum sentence.

Specifically, they recited his statutory mandatory-minimum sentence as 10 years for the

discharging count and a consecutive 25 years for the brandishing count—for a total of 35 years.

But, as this court explained in United States v. Washington, 

 (6th Cir. 2013), the

rule of lenity applies such that when a defendant faces multiple § 924(c) counts in a single

indictment, the count carrying the lowest minimum sentence should be counted first for purposes

of administering consecutive penalties. Applying this rule of ordering to Haji-Mohamed’s two

counts means that the brandishing count, which carried a minimum sentence of 7 years for a first

offense, must come before the discharge count, which carried a minimum of 10 years when

counted first.2 When listed second in the ordering, either count (brandishing or discharging) would

then carry a consecutive mandatory-minimum term of 25 years. Hence, the total mandatory-

minimum sentence was 32 years—three years less than the agreed-to-term stated in the plea

documents. This erroneous calculation was repeated during the plea hearing when the district

court informed Haji-Mohamed that the statutory mandatory minimum for the discharge count was

“at least ten years” and that the penalty for the brandishing count was “a mandatory minimum

consecutive imprisonment of at least 25 years.”

        While the implications of Washington went undetected, the potential effect of relatively

contemporaneous statutory changes did not. After Haji-Mohamed’s guilty plea but before his



1
  Under a C-Plea, if the court accepts the parties’ agreed-upon sentencing range or specific term of years,
then it retains no discretion to depart from the agreed amount.
2
 The minimum sentences here refer to the state of the law at the time Haji-Mohamed committed the charged
offenses and pleaded guilty. See 

(c) (2016).
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No. 21-5733, Haji-Mohamed v. United States


sentencing, Congress passed the First Step Act of 2018, 

 Stat. 5194

(2018), which, if applied, would have reduced the mandatory-minimum sentence for the two

offenses to which Haji-Mohamed pleaded guilty to 17 years. He filed a motion to withdraw the

guilty plea for this reason. The district court held a hearing on the motion, but Haji-Mohamed did

not raise the so-called Washington error during the hearing. Haji-Mohamed testified at the hearing

that he accepted the plea agreement for 35 years because it was his mandatory minimum. He

argued that he would not have pleaded guilty and accepted a 35-year sentence if the mandatory

minimum was only 17 years. The district court denied the motion and later sentenced him to 35

years imprisonment in accordance with his C-Plea. He did not file a direct appeal.

       Haji-Mohamed later filed the instant petition to vacate his sentence pursuant to 

, arguing that the district court’s failure to advise him of the correct minimum sentence

violated Fed. R. Crim. P. 11 (b)(1)(I), thus rendering his plea unintelligent and involuntary, and

that his trial counsel was ineffective both in his handling of the motion to withdraw his guilty plea

and in failing to properly advise him about the decision to appeal. The district court did not hold

an evidentiary hearing on the petition. Instead, it considered the following: declarations from Haji-

Mohammed and his trial counsel, David Komisar filed by the parties with their briefing; the plea

colloquy; testimony from the evidentiary hearing on the motion to withdraw his guilty plea; and

other evidence in the record.

       After considering the evidence, the district court concluded that the 35-year agreed-upon

sentence was not based on the mandatory minimum. It credited the government’s evidence that

the parties negotiated an agreement as to the total term of years and then chose the counts to

which Haji-Mohammed would plead guilty to match that term of years. The district court also

concluded that Haji-Mohamed’s lawyer was not ineffective by failing to recognize and raise the


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No. 21-5733, Haji-Mohamed v. United States


minimum-sentence error in the context of his motion to withdraw his plea. More specifically,

the district court found that Haji-Mohamed could not demonstrate the requisite prejudice required

under Strickland v. Washington, 

 (1984), because he agreed to serve a term of 35

years under his plea agreement, not to serve whatever the mandatory minimum turned out to be

for the charges to which he pleaded guilty. Finally, the court concluded that the failure to raise

United States v. Washington did not meet the benchmark for ineffectiveness under Strickland

because the case was not directly applicable given the nature of C-Pleas. As such, the district court

concluded it was unreasonable to expect counsel to have raised Washington, which established a

rule “that applied in an entirely different context.” This appeal followed.

                                                 II.

       Ineffective-assistance-of-counsel claims “may be brought in a collateral proceeding under

§ 2255, whether or not the petitioner could have raised the claim on direct appeal.” Massaro

v. United States, 

 (2003). We “review the denial of a § 2255 motion de novo,”

including the resolution of “claims of ineffective assistance of counsel, which are mixed questions

of law and fact.” Wingate v. United States, 

 (6th Cir. 2020) (quotation and

brackets omitted). We “review the district court’s factual findings for clear error.” 

 The court

may address Strickland’s prongs in any order and need not address both prongs “if [the movant]

makes an insufficient showing on one.” 

 at 255 (quoting Strickland, 

).

                                                III.

       Ineffective Assistance of Counsel. Haji-Mohamed maintains that his trial lawyer was

ineffective in failing to recognize and assert, as additional grounds to support his motion to

withdraw the guilty plea, that the district court’s incorrect advice as to the mandatory-minimum




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No. 21-5733, Haji-Mohamed v. United States


sentence was an error under Rule 11 that rendered his plea involuntary and unintelligent. He also

argues that counsel was ineffective in failing to advise him to file a direct appeal on this issue.

       The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to have the assistance of counsel for his defense.” U.S. Const. amend. VI. A criminal

defendant’s Sixth Amendment right to counsel necessarily implies the right to “reasonably

effective assistance” of counsel. Strickland, 

. To succeed on a claim that trial

counsel was ineffective under Strickland, a petitioner must affirmatively prove both that the

attorney’s performance was deficient and that petitioner was prejudiced as a result. 

 As to

deficient performance, the proper inquiry is whether counsel’s representation sank to the level of

“incompetence under ‘prevailing professional norms,’” as opposed to whether counsel simply

departed from best, or even common practice. Harrington v. Richter, 

 (2011)

(quoting Strickland, 

). And as to prejudice, the court must determine if the

petitioner has demonstrated a substantial likelihood of a different outcome were it not for counsel’s

deficiencies. Id. at 112. Applying these standards, we consider Haji-Mohamed’s claims in turn.

       A.      The Motion to Withdraw the Guilty Plea

       The general rule is that “failure to provide professional guidance to a defendant regarding

his sentence exposure prior to a plea may constitute deficient assistance.” Moss v. United States,

 (6th Cir. 2003) (citing Magana v. Hofbauer, 

 (6th Cir. 2001)).

Where a petitioner alleges that his counsel failed to provide such guidance, we have found that

applying Strickland requires a petitioner to show “(1) that his counsel’s performance was

objectively deficient; and (2) that but for his counsel’s erroneous advice, there is a reasonable

probability that he would have [rejected] a plea.” Id.; see also Hill v. Lockhart, 

(1985) (the second prong of Strickland requires a movant to demonstrate “a reasonable probability


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No. 21-5733, Haji-Mohamed v. United States


that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going

to trial”); Lafler v. Cooper, 

 (2012) (requiring petitioner to show that the outcome

of the plea process would have been different with competent advice).

       Deficiency of Counsel. The district court found that trial counsel’s failure to identify and

raise the mandatory-minimum error was not objectively deficient because Washington was not

directly applicable and the Sixth Amendment did not require counsel to be a “lexicon of

all published cases,” or at least not those that establish a rule that applies in a different context.

(R. 20, PageID.159). But the statute of conviction, not just Washington, provides the source of the

Rule 11 error. Section 924(c)(1)(A)(ii) expressly provides a mandatory-minimum sentence of

seven years for “brandishing” a firearm and § 924(c)(1)(A)(iii) sets forth a mandatory-minimum

sentence of 10 years for “discharging” a firearm.         Moreover, Rule 11(b)(1)(I) imposed an

obligation on the district court to inform the defendant of any mandatory minimum penalty. FED.

R. CRIM. P. 11(b)(1)(I). Consequently, the “ordering” of offenses for sentencing discussed in

Washington is not the entirety of the issue. Rather, the question is whether counsel’s failure to

identify and raise the error made by the court under Rule 11—to inform Haji-Mohammed that

the mandatory minimum for a § 924(c)(1)(A)(ii) brandishing offense is only seven years and then

mis-ordering the offenses to reach the incorrect total of 35 years—constitutes objectively deficient

performance. Notably, “[s]trategic choices made after thorough investigation of law and facts

relevant to plausible options are virtually unchallengeable; and strategic choices made after less

than complete investigation are reasonable precisely to the extent that reasonable professional

judgments support the limitations on investigation.” Strickland, 466 U.S. at 690–91. Hence,

counsel has a duty either to conduct a reasonable investigation or to make a reasonable decision

that renders a particular investigation unnecessary. Id. Despite misgivings about the wisdom of


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No. 21-5733, Haji-Mohamed v. United States


such action, Komisar decided to move forward with a motion to withdraw Haji-Mohamed’s guilty

plea based on changes made by the Fair Sentencing Act. He did not pursue withdrawal based on

the Rule 11 error.

        Here, Komisar simply says that he did not realize that the mandatory minimum for the two

counts was 32 years and that even if he had, the parties would have reworked the plea agreement

to get to 35 years. Thus, he did not take additional steps to apprise himself of the applicable

mandatory minimum and forged ahead with advising his client without that information in hand.

It is therefore hard to say that his failure to advise Haji-Mohamed to pursue the Rule 11 violation

as part of his motion to withdraw his guilty plea was a conscious decision. To be sure, such

circumstances raise serious questions about whether counsel’s failure is objectively deficient. See

Smith v. United States, 

 (6th Cir. 2003) (“A criminal defendant has a right to

expect at least that his attorney will review the charges with him by explaining the elements

necessary for the government to secure a conviction, discuss the evidence as it bears on those

elements, and explain the sentencing exposure the defendant will face as a consequence of

exercising each of the options available.”); Hinton v. Alabama, 

 (2014) (“An

attorney’s ignorance of a point of law that is fundamental to his case combined with his failure to

perform basic research on that point is a quintessential example of unreasonable performance

under Strickland.”); Lockhart, 

 (White, J., concurring) (“The failure of an attorney

to inform his client of the relevant law clearly satisfies the first prong of the Strickland analysis.”).

Yet, counsel’s overall plea negotiation strategy to reach a global agreement for a term of years that

would encompass all charges stemming from Haji-Mohamed’s then-pending state and federal

charges—irrespective of the mandatory minimum sentence—is hard to second-guess or label




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No. 21-5733, Haji-Mohamed v. United States


objectively unreasonable. In the end, we need not conclude one way or the other on this aspect of

counsel’s performance because Haji-Mohamed’s claim fails on the prejudice prong regardless.

       Prejudice. On the question of prejudice, we ask whether Haji-Mohamed would have

withdrawn his guilty plea and insisted on going to trial. We have previously emphasized the

objective nature of the second prong:

               This is an objective, not a subjective, test. [Lockhart, 474 U.S.] at
               60. A defendant’s bare recitation that he would have proceeded to
               trial had he received different advice is not enough; rather, “to obtain
               relief on this type of claim, a [defendant] must convince the court
               that a decision to reject the plea bargain would have been rational
               under the circumstances.” Padilla v. Kentucky, 

               (2010).

Ellis v. United States, No. 19-6047, 

, at *2 (6th Cir. Jan. 30, 2020). As

discussed, the prejudice prong generally requires a defendant to show that there is a reasonable

probability that the outcome of the plea process would have been different if he had received

competent advice. Thompson v. United States, 

, 531 (6th Cir. 2018) (citing

Lafler, 

). While Haji-Mohamed declares that he would have declined to plead

guilty had he known of the 32-year mandatory minimum, he notably stops short of stating that he

would have gone to trial. Enhancing his bargaining position may explain this equivocation. The

district court aptly observed that by the time of Haji-Mohamed’s motion to withdraw his guilty

plea, the bargaining landscape had shifted: his co-defendant had been acquitted of the Cricket store

robbery and a primary witness to the murder charge had died. Thus, “buyer’s remorse” was more

than a passing theory for his motivation.

       True, Haji-Mohamed sought to withdraw his guilty plea upon passage of the Fair

Sentencing Act when his mandatory-minimum sentence was potentially cut in half. But this fact,

reflecting his subjective judgment in a different, though similar context, even considered together

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No. 21-5733, Haji-Mohamed v. United States


with Haji-Mohamed’s declaration is not enough. Like his testimony at the hearing on his motion

to withdraw his guilty plea, Haji-Mohamed’s declaration supporting his § 2255 petition states that

if he had known the aggregate mandatory-minimum sentence was only 32 instead of 35 years, he

would not have pleaded guilty. But seemingly in tension with this position is his statement that he

decided to plead guilty and to accept the plea bargain “mainly” because he thought there was a

substantial chance that he would be convicted of one of the robbery counts involving the Cricket

mobile phone store and one of the other (dismissed) § 924(c) counts. Considering this fact, his

further point that he disagreed with Komisar on the strength of the state murder charge does not

seem meaningful to the question of whether he would have withdrawn his guilty plea.

       For his part, Komisar explained in his declaration that he believed (if Haji-Mohamed did

not plead guilty) there was a high probability that Haji-Mohamed would be convicted of the state

murder charge given the number of witnesses to that crime, and that he would likely face 51 years

in state prison before he would be eligible for parole. According to Komisar, the 51-year number

drove the plea process; he told the government’s attorney that any plea agreement must include

the murder charge. During negotiations, the government first offered a global plea deal of 40

years’ imprisonment; Komisar countered with 30 years; and they settled on 35 years. Komisar

explained that while Haji-Mohamed was unhappy with the offer, he ultimately seemed to

appreciate that a global agreement to 35 years was better than a potential 51-year state penalty plus

whatever the federal sentence turned out to be if he did not accept the plea offer. Komisar declared

that it did not matter how the parties arrived at 35 years as far as the combination of counts. Picking

counts “was simply a device to get to the agreed number of 35 years.”

       The district court found that Haji-Mohamed’s statement that the misstated mandatory

minimum motivated his acceptance of the plea offer was not credible. The court based its finding


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No. 21-5733, Haji-Mohamed v. United States


on Haji-Mohamed’s prior testimony—including the court’s recollection of his demeanor while

testifying, and the evidence in the record showing that the 35 years was driven by factors other

than the mandatory minimum. We have previously held that “[i]n the absence of a clear basis in

the record for rejecting the district court’s credibility determinations, we are bound by those

determinations.” United States v. Hudson, 

 (6th Cir. 2005). Indeed, “[f]indings

of fact anchored in credibility assessments are generally not subject to reversal upon appellate

review.” 

 (quoting United States v. Taylor, 

 (6th Cir. 1992) (en banc)). And

we see no clear basis for rejection here. By his own admission, he was mainly motivated by the

possibility of being convicted of one of the Hobbs Act-robbery counts and a third 924(c) count,

the latter of which (at the time of the plea negotiations and his change of plea) carried an additional

25-year consecutive mandatory-minimum term. There is no reason to believe that learning the

correct mandatory minimum was 32 years rather than 35 years would have motivated him to

proceed to trial rather than to remove the “substantial chance” of conviction on the counts he

referenced in his declaration.

       Moreover, the additional evidence in the record supports the district court’s conclusion

that Haji-Mohamed did not suffer the requisite prejudice to sustain his claim. In particular, while

Haji-Mohamed now says that he was less concerned about the state murder charge, it loomed large

over the plea negotiations—so much so that Komisar insisted that the government coordinate its

offer with the state prosecutor overseeing the murder case. And tellingly, the parties agreed to the

number of years acceptable to both sides before settling on which of Haji-Mohamed’s 19 counts

would be the subjects of the guilty plea. Further, the agreement disposed of 17 other federal

counts that were serious felonies. And while Haji-Mohamed expressed frustration about the

rapidly-approaching trial date, he ultimately praised the result, stating during the plea hearing,


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No. 21-5733, Haji-Mohamed v. United States


“Mr. Komisar even—regardless of our differences, he’s able to still give me this 35.” (Case No.

15-cr-00088, R.624, PageID.2306, 2310). Later in the plea colloquy, he confirmed that he was

giving up “the right to a trial and all of the defense strategy that [he] could produce and—and could

be made on [his] behalf at trial[].” (Id. at 2313). Thus, on balance, the contemporaneous evidence

of Haji-Mohamed’s preference to plead guilty rather than go to trial undermines his claim to the

contrary. See Lee v. United States, 

 (2017) (explaining that guilty pleas should

not be upset merely based on a defendant’s post hoc assertions that he would not have pleaded

guilty but for counsel’s errors. Instead, judges should “look to contemporaneous evidence to

substantiate a defendant’s expressed preferences.”).       As a result, he cannot demonstrate a

substantial likelihood of a different result and cannot satisfy Strickland’s standard for prejudice.

       B.      Failure to Appeal

       With respect to Haji-Mohammed’s argument that counsel was ineffective because he failed

to advise him to file a direct appeal raising the Rule 11/voluntariness error, we conclude that this

argument fails for reasons largely similar to those discussed above.

       “In those cases where the defendant neither instructs counsel to file an appeal nor asks

that an appeal not be taken, . . . the question [is] . . . whether counsel in fact consulted with the

defendant about an appeal.” Neill v. United States, 

 (6th Cir. 2019) (quoting

Roe v. Flores-Ortega, 

 (2000)). In this context, “consult” means to advise “the

defendant about the advantages and disadvantages of taking an appeal, and [to] mak[e] a

reasonable effort to discover the defendant’s wishes.” 

 (quoting Flores-Ortega, 

). However, counsel only has a constitutional duty to consult when “a rational defendant would

want to appeal” or when “this particular defendant reasonably demonstrated to counsel that he was

interested in appealing.” 

 (quoting Flores-Ortega, 

). In all cases, “courts must


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No. 21-5733, Haji-Mohamed v. United States


judge the reasonableness of counsel’s challenged conduct on the facts of the particular case,

viewed as of the time of counsel’s conduct, and judicial scrutiny of counsel’s performance must

be highly deferential.” 

 (quoting Flores-Ortega, 

) (internal quotation marks

omitted). We observed in Moody v. United States, 

 (6th Cir. 2020), that “defense

lawyers need not (and in fact should not) raise every colorable argument they can find.” (citing

Davila v. Davis, 

 (2017) (“Effective appellate counsel should not raise every

nonfrivolous argument[.]”); Wilson v. McMacken, 

, 219 n.3 (6th Cir. 1986) (trial

counsel need not make “every colorable objection”). This is because difficult decisions about

which issues to pursue and which ones to cast aside lie at the heart of legal advocacy. A lawyer’s

decision on such issues is deficient only when no reasonable attorney would have made the same

call at the time. See Strickland, 

.

       There is no debate that Komisar consulted with Haji-Mohamed about a potential appeal.

Thus, the question before the court is not whether the duty to consult was triggered, but whether

the consultation itself passes constitutional muster. Komisar’s declaration reflects discussions

about appealing and the risk that an appeal could void the plea agreement. The government argues

that Komisar provided competent, candid advice, despite failing to mention the Rule 11 error with

Haji-Mohamed. The government also points out that raising the Rule 11 error on appeal would

have carried risks similar to or the same as those attendant to the other issues Komisar did discuss

with Haji-Mohamed. Still, Komisar’s declaration does not suggest that he discussed the Rule

11 error and the advantages and disadvantages of pursuing an appeal on that issue with

Haji-Mohamed, or that he discerned whether Haji-Mohamed wanted to appeal the issue.

       We presume prejudice in an ineffective-assistance claim if a defendant can establish a

reasonable probability “that, but for counsel’s deficient performance, he would have appealed.”


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No. 21-5733, Haji-Mohamed v. United States

; see also Garza v. Idaho, — U.S. —, 

 (2019)

(prejudice is presumed when an attorney’s deficient performance causes a defendant to forgo an

appeal that he otherwise would have pursued, even if he has signed an appeal waiver). This is

where Haji-Mohamed’s claim once again falters. Neither in the district court nor on appeal does

Haji-Mohamed point to any evidence in the record suggesting that he would have pursued an

appeal if counsel had advised him that the sentencing-exposure advice provided a meritorious

ground for doing so. Not even Haji-Mohamed’s self-serving declaration in support of his petition

makes this claim.3 Moreover, he agreed with Komisar’s advice to forgo any appeal of the court’s

denial of his motion to withdraw his guilty plea because he agreed that the risk of resurrecting the

murder charge was too great. The same danger existed were he to successfully challenge his guilty

plea. As such, we do not presume prejudice here and Haji-Mohamed has not otherwise met his

burden to establish its existence. Therefore, he is not entitled to relief.

        Lack of Evidentiary Hearing. Haji-Mohamed resists this conclusion, arguing that at

minimum, the district court was obligated to conduct a hearing on his claims. Section 2255

requires “a hearing on such allegations unless the motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief.” Fontaine v. United States, 

 (1973) (internal quotation marks omitted); Ray v. United States, 

, 760–61

(6th Cir. 2013). “Stated another way, the court is not required to hold an evidentiary hearing if the

petitioner’s allegations cannot be accepted as true because they are contradicted by the record,

inherently incredible, or [are] conclusions rather than statements of fact.” Amr v. United States,



3
  Notably, the presentence report, which Haji-Mohamed reviewed before sentencing, correctly identified
the mandatory minimum for the brandishing count as seven years. He did not question this fact. The parties
do not address the extent to which this notice may have factored into the decision-making process; we
highlight it here for further context.
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No. 21-5733, Haji-Mohamed v. United States

 (6th Cir. 2008). The decision whether to hold an evidentiary hearing is one

committed to the sound discretion of the district court. Huff v. United States, 

(6th Cir. 2013) (“A decision not to hold an evidentiary hearing on a motion for relief under 

 is reviewed for abuse of discretion.”).

        Here, the district court made a credibility finding that Haji-Mohamed’s claim that the stated

mandatory minimum motivated his acceptance of the plea offer was not believable. For reasons

previously discussed, we are loath to question this finding. While the district court’s credibility

determination does not necessarily mean that Haji-Mohamed’s statement is “inherently

unreliable,” coupling it with his declaration accompanying his petition demonstrates an internal

inconsistency that contradicts the record. Specifically, as we noted earlier, Haji-Mohamed states

in his declaration that he mainly agreed to plead guilty to avoid possible convictions for the Cricket

store robbery and another 924 (c) count—not because 35 years was the lowest statutory sentence.

Irrespective of the evidence offered by the government, therefore, his own account of the foremost

motivating factor for his guilty plea is untethered from the error that he claims justifies relief.

Consequently, even with the relatively light burden placed on petitioners to justify a hearing, he

has failed to carry it and the district court did not abuse its discretion in declining to hold a hearing

for his claims.

        Voluntariness of Guilty Plea. In addition to his ineffective-assistance-of-counsel claims,

Haji-Mohamed also makes the independent argument that his guilty plea was constitutionally

infirm because it was not voluntary and intelligent and thus violated due process.                   But

Haji-Mohamed did not raise the claim that his plea was unintelligent and involuntary at or before

sentencing. Nor, as we have discussed, did he file a direct appeal. Instead, he raised it for the first

time in his §2255 motion. Generally, when a defendant fails to raise an issue on direct appeal,


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No. 21-5733, Haji-Mohamed v. United States


other than ineffective assistance of counsel, that issue is waived and cannot be pursued on collateral

review absent a showing of cause and prejudice. See Huff, 734 F.3d at 605–06. The hurdle for

such a double default is intentionally high in view of the federal interest in the finality of criminal

convictions. See United States v. Frady, 

 (1982). Indeed, “the concern with finality

served by limitation on collateral attack has special force with respect to convictions based on

guilty pleas.” United States v. Timmreck, 

 (1979). And the Court has not

hesitated to apply this standard to cases involving claims of unintelligent and involuntary guilty

pleas. See, e.g., Bousley v. United States, 

 (1998).

       The government may, however, forfeit its right to assert default as a defense by failing to

raise it. See Elzy v. United States, 

 (6th Cir. 2000). The government has not

asserted default in this case. And the district court did not consider its application. Even so, we

may raise the issue sua sponte where appropriate. 

 We acknowledge that ineffective assistance

of counsel can provide sufficient cause to excuse a petitioner’s failure to raise an issue in the

district court or on direct appeal. See Murray v. Carrier, 

 (1986) (stating that

procedural default resulting from ineffective assistance of counsel must be imputed to the state).

Nevertheless, “the mere fact that counsel failed to recognize the factual or legal basis for a claim,

or failed to raise the claim despite recognizing it, does not constitute cause for a procedural

default.” 

. Thus, under the facts that Haji-Mohamed has alleged—that counsel missed

the involuntary/unintelligent-plea issue in the district court and in considering grounds for

appeal—he has not established sufficient cause to excuse the procedural default. Moreover, having

failed to demonstrate prejudice sufficient to sustain his ineffective-assistance-of-counsel claims,

he necessarily cannot establish the actual prejudice required to overcome his procedural default.

Under such circumstances, where we have thoroughly explored petitioner’s posited reason for


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No. 21-5733, Haji-Mohamed v. United States


failing to raise his involuntary/unintelligent-plea claim, we find that additional briefing is not

necessary and sua sponte consideration is appropriate. We thus decline further review on the

merits of this claim.

                                               IV.

       Request for Remand. Finally, Haji-Mohamed argues that if this matter is remanded, a

different district judge should be assigned. His request is motivated by the fact that the district

court made an adverse credibility finding against him. We have accepted the district court’s

credibility finding and otherwise found that Haji-Mohamed is not entitled to relief. Therefore,

there will be no remand and his request is denied as moot.

                                                V.

       For the reasons set forth above, the decision of the district court is AFFIRMED.




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