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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-7032
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
JAMES EVERETT FLOOD, III, a/k/a Junior, a/k/a Junebug, a/k/a Bug,
Defendant – Appellant.
Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Peter J. Messitte, Senior District Judge. (8:03-cr-00457-PJM-3; 8:11-cv-03563-PJM)
Argued: October 24, 2025 Decided: August 13, 2026
Before WILKINSON, RICHARDSON, and HEYTENS, Circuit Judges.
Affirmed by published opinion. Judge Richardson wrote the opinion, in which Judge
Wilkinson joined. Judge Heytens wrote a dissenting opinion.
ARGUED: C. Justin Brown, BROWN LAW, Baltimore, Maryland, for Appellant. Mary
Jessica Kirsch Munoz, OFFICE OF THE UNITED STATES ATTORNEY, Greenbelt,
Maryland, for Appellee. ON BRIEF: Kelly O. Hayes, United States Attorney, David C.
Bornstein, Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Baltimore, Maryland, for Appellee.
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RICHARDSON, Circuit Judge:
James Flood is serving a life sentence for the kidnapping and killing of Eric Hayes.
He moved to vacate his sentence under 28 U.S.C. § 2255, claiming that his trial counsel
rendered ineffective assistance by failing to resolve his case with a plea agreement. The
district court denied the claim without an evidentiary hearing. Flood says that was an error
because the record contained factual disputes that only a hearing could resolve. But the
dispositive facts are undisputed. The parties did discuss a plea. Yet the only deal the
government would consider required Flood to proffer truthfully and to testify against the
men who helped him kidnap and kill Hayes. Nothing in the record suggests he would have
done either. Courts hold evidentiary hearings to resolve disputes, not to conjure them.
Here, there was no dispute to resolve. So we affirm.
I. BACKGROUND
On January 3, 2002, a group of men, including James Flood, kidnapped and killed
Eric Hayes. 1 A federal grand jury charged Flood and two other men, Kenneth Lighty and
Lorenzo Wilson, with (1) one count of kidnapping resulting in death, in violation of 18
U.S.C. § 1201(a) and § 2; (2) one count of conspiracy to kidnap, in violation of § 1201(c)
and § 2; and (3) three counts of using a firearm during and in relation to a crime of violence,
in violation of § 924(c) and § 2.
Kidnapping resulting in death is a capital offense. 18 U.S.C. § 1201(a) (“[I]f the
death of any person results, [the offender] shall be punished by death or life
1
For a full account of their crimes, see United States v. Lighty, 616 F.3d 321, 337–
42 (4th Cir. 2010).
2
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imprisonment.”). But the government pursued the death penalty against only Lighty, not
Flood. So heading into his October 2005 trial, Flood faced a mandatory life sentence on
the kidnapping charge. Flood’s court-appointed counsel, Michael Lawlor and John
McKenna, faced an uphill battle. Overwhelming evidence pointed to Flood’s guilt. 2
The parties agree that Flood never received a plea offer from the government.
Affidavits prepared in light of Flood’s § 2255 motion tell the story. In a short affidavit
signed by Flood in 2011, six years after his 2005 conviction, Flood swore that at the time
of the trial, he “did not believe [his] chances of winning” were “very good.” J.A. 92. He
expressed: “All I wanted to do was avoid getting a life sentence, I was hoping I could get
a plea and get a lower sentence.” Id. He further noted that, as far as he knew, his “lawyers
never asked the government about the possibility of a plea before the trial.” Id.
In 2012, one of Flood’s lawyers, Michael Lawlor, also submitted an affidavit
explaining what he recalled about Flood’s trial and about the potential for a plea bargain.
Lawlor opined that he provided ineffective assistance to Flood by “failing to seek a pretrial resolution of this case.” J.A. 95. He stated that this failure “was not based on any
strategic decision,” or “any reluctance to plead guilty by Mr. Flood,” but rather occurred
because he and his co-counsel, John McKenna, “didn’t know better.” J.A. 95–96. Lawlor
recalled that the prosecutor, Ms. Wilkinson, approached him “about the prospect of
2
To list a few examples: Flood facilitated the relocation of the kidnapping vehicle
from D.C. to North Carolina, where his parents sold it; DNA testing identified blood on
the car’s rear floorboard as Hayes’s; phone records showed a co-defendant using Flood’s
phone to summon a ride shortly after the shooting; and Flood lied to the grand jury about
his role in hiding the car.
3
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pleading” during jury selection, and that he and McKenna met with the government’s
lawyers to discuss a plea that night. J.A. 96. The prosecutors told them “that in order to
receive an offer, Mr. Flood would have to proffer.” 3 Id. After discussing the matter, both
Lawlor and McKenna agreed that proffering “at this stage of the case was too risky.” Id.
According to Lawlor, they “failed, however, to permit Mr. Flood to make an election about
proffering.” Id. That’s true even though Lawlor and McKenna had previously talked to
him about the possibility of pleading guilty, and Lawlor recalled that Flood “was not
reluctant to do so.” Id.
At a 2017 hearing on Flood’s § 2255 motion, Wilkinson stated she did not recall
meeting with Flood’s counsel about the possibility of proffering. But for purposes of this
appeal, the government does not dispute Lawlor’s account. Appellee Br. at 7. In an
affidavit executed in 2017, Wilkinson swore that the government “believed that absent
cooperation, Flood should receive a life sentence” and they “would not offer any plea
agreement that did not include a truthful proffer and cooperation.” J.A. 226. She further
noted that “[b]ased on our interactions with [Flood] and counsel . . . we believed that
[Flood] did not want to and would not testify against his co-conspirators,” so “any plea
offer that would have been acceptable to [the government] would not have been acceptable
3
A “proffer” is an agreement between a defendant and the government setting forth
the terms under which a defendant will provide information to the government during an
initial interview. United States v. Lopez, 219 F.3d 343, 345 n.1 (4th Cir. 2000) (citing
Harry I. Subin et al., Federal Criminal Practice § 10.5 (1992)). A “proffer” often leads to
cooperation and a plea agreement, but not always. See Barry Boss et al., Federal Criminal
Practice §§ 10:97.2, 13:41 (2024) (describing the “proffer process” and summarizing
cooperation-based plea agreements).
4
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to” Flood. Id. Therefore, the government “did not offer, and would not have offered, any
plea agreement to [Flood] even if counsel had requested one.” Id.
Nothing came of the proffer discussion, and Flood went to trial. The jury convicted
him on all counts. The court sentenced him to life for Count 1 (kidnapping resulting in
death), ten years for Count 2 (conspiracy to kidnap), five years for Count 3 (use of a firearm
in a crime of violence), and twenty-five years each for Counts 4 and 5 (same)—all to run
consecutively. Flood timely appealed his sentence and convictions, which we affirmed.
Lighty, 616 F.3d at 380.
In 2011, 4 Flood filed a § 2255 motion to vacate, set aside, or correct his sentence.
He attached his and Lawlor’s affidavits, discussed above, to the motion. He also attached
federal plea statistics and an affidavit from a defense attorney, William Purpura, who
opined that “[f]ailing to pursue a plea in this case was a breach of the standard of care.”
J.A. 80. In the motion itself, Flood mounted several challenges to his convictions,
including a long list of ways he believes his counsel rendered constitutionally ineffective
assistance. The district court rejected Flood’s ineffective assistance of counsel claims
4
One might reasonably question why it took fifteen years for Flood’s motion to
reach this Court. First, it took several years to litigate a Batson claim in the § 2255
motion—a claim that involved all the defendants, not just Flood. Second, in 2016, Flood
supplemented his original § 2255 motion, in light of the Supreme Court’s decision in
Johnson v. United States, 576 U.S. 591 (2015). While the district court resolved all of the
claims from the original motion in 2018, the court stayed the supplemental Johnson claims,
pending appeals in this Court and the Supreme Court that could have impacted the district
court’s decision. There would be no final judgment until the district court decided those
claims, so Flood needed to wait for their resolution before he could appeal. See Fed. R.
Civ. P. 54(b). The district court ruled on Flood’s remaining Johnson claims in 2023,
rendering a final judgment, at which point Flood timely sought a certificate of appealability
in this Court.
5
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without holding an evidentiary hearing. See Flood v. United States, 345 F. Supp. 3d 599,
614 (D. Md. 2018).
Flood timely appealed. This Court granted a certificate of appealability regarding
only one of his ineffective-assistance theories: “Whether the district court abused its
discretion by rejecting, without an evidentiary hearing, Flood’s claim that trial counsel
rendered ineffective assistance by failing to pursue a plea agreement on his behalf.”
II. LEGAL FRAMEWORK
A. Denial Of A § 2255 Motion Without An Evidentiary Hearing
When a convict files a § 2255 motion, the district court must hold a hearing,
“[u]nless the motion and the files and records of the case conclusively show that the
prisoner is entitled to no relief.” 28 U.S.C. § 2255(b) (emphasis added); Machibroda v.
United States, 368 U.S. 487, 494 (1962). Where, as here, a district court denies relief
without holding an evidentiary hearing, we review the “district court’s decision to forego
an evidentiary hearing for abuse of discretion.” United States v. Sutherland, 103 F.4th 200,
207 (4th Cir. 2024). 5 And we review the district court’s legal conclusions de novo. United
States v. Mayhew, 995 F.3d 171, 176 (4th Cir. 2021).
“We have been less than perfectly consistent” about what makes a showing
conclusive under § 2255(b), “analogizing a denial of § 2255 relief without a hearing both
to a grant of summary judgment and to a grant of a motion to dismiss.” United States v.
5
A court “abuses its discretion when it acts in an arbitrary manner, when it fails to
consider judicially-recognized factors limiting its discretion, or when it relies on erroneous
factual or legal premises.” Wall v. Rasnick, 42 F.4th 214, 220 (4th Cir. 2022) (cleaned up).
6
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Hashimi, 110 F.4th 621, 627 n.3 (4th Cir. 2024) (citations omitted). The statute’s text and
the Rules Governing Section 2255 Proceedings supply the answer.
First, the text: “Unless the motion and the files and records of the case conclusively
show that the prisoner is entitled to no relief, the court shall . . . grant a prompt hearing
thereon.” § 2255(b). A claim thus demands a hearing only if the files and records leave
room for relief. The use of the word “conclusively” suggests it need not be much room.
“Conclusively” describes something that occurs “[i]n a conclusive manner; so as to
conclude or decide the question or matter; decisively, [or] finally.” Conclusively, Oxford
English Dictionary (2d ed. 1989). The word “conclusively” tells us to read the record in
the convicted person’s favor: If the record reveals something less than a conclusive
showing that the convicted person will lose—a high bar—the court may not immediately
deny the motion and instead must first hold a hearing. Cf. Hashimi, 110 F.4th at 627 (“[W]e
view the facts in the light most favorable to the § 2255 movant . . . and draw reasonable
inferences in his favor.”).
But the statute also fixes what the court may look at: “the files and records of the
case.” § 2255(b). Thus, a court should not consider information outside the record before
it, including speculation about what might later be added to it. So while we require a
hearing if there is anything short of a conclusive showing that the movant is not entitled to
relief—a rule that favors § 2255 movants—we do not look beyond the record or speculate
in the convicted person’s favor when deciding whether such a showing exists.
7
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Second, consider the Rules Governing Section 2255 Proceedings. 6 Rule 4 governs
a judge’s “preliminary review” of a § 2255 motion. If, after “promptly examin[ing]” the
motion, “it plainly appears from the motion, any attached exhibits, and the record of prior
proceedings that the moving party is not entitled to relief, the judge must dismiss the
motion.” Rule 4(b). This standard is akin to the one district courts must apply when
evaluating a motion to dismiss for failure to state a claim. Cf. Fed. R. Civ. P. 12(b)(6)
(permitting dismissal where the pleading fails to state a claim on which relief can be
granted). A court initially considers a § 2255 motion as it would consider a complaint
facing a motion to dismiss, asking whether the motion’s allegations—if taken as true—
entitle the movant to relief.
Other rules come into play if the motion survives Rule 4(b) review. The judge “must
order” the government to respond or “take other action the judge may order.” Rule 4(b).
Rule 5 governs the answer and reply briefs filed by the government and movant. Rule 6
governs discovery, and Rule 7 permits “the parties to expand the record” at the judge’s
direction, “by submitting additional materials relating to the motion.” Rule 7(a). Rule 8(a)
requires the judge to “review the answer, any transcripts and records of prior proceedings,
and any materials submitted under Rule 7 to determine whether an evidentiary hearing is
warranted.” Rule 8(a). These procedures resemble those that govern summary judgment.
Cf. Fed. R. Civ. P. 56 (permitting judgment without trial where the record shows no
6
Congress approved and enacted these Rules into law in 1976. See An Act to
approve in whole or in part, with amendments, certain rules relating to cases and
proceedings under sections 2254 and 2255 of title 28 of the United States Code, Pub. L.
No. 94-426, 90 Stat. 1334 (1976).
8
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genuine dispute of material fact). Just as a court resolves a motion for summary judgment
on the developed record before proceeding to trial, a court deciding a § 2255 motion
considers the briefs and expanded record before proceeding to an evidentiary hearing. 7
These stages explain our precedent. We have compared hearing-free denials both
to Rule 12(b)(6) dismissals and to Rule 56 summary judgments. See, e.g., United States v.
Paylor, 88 F.4th 553, 565 (4th Cir. 2023) (analogizing to Rule 12(b)(6) dismissal);
Mayhew, 995 F.3d at 176 (analogizing to summary judgment). Both analogies are right.
They just apply at different stages of a § 2255 proceeding. So determining which analogy
applies in a particular case depends on when in the proceedings the district court dismissed
the § 2255 motion.
When we review a district court’s denial of a § 2255 motion at the Rule 4 stage, we
are guided by the principles governing review of a Rule 12(b)(6) dismissal. So we “accept
a petitioner’s well-pleaded allegations as true,” and ask whether the record conclusively
forecloses relief notwithstanding those allegations. Paylor, 88 F.4th at 565 (cleaned up).
And when a district court denies a § 2255 motion at the Rule 8 stage—after receiving
7
Section 2255(b) requires “a prompt hearing”—the statute nowhere says
“evidentiary.” Indeed, the court may “entertain and determine” the motion “without
requiring the production of the prisoner at the hearing.” § 2255(c). The Rules supply the
form: preliminary review under Rule 4, expansion of the record under Rule 7, and, only if
the expanded record leaves a material dispute, the “evidentiary hearing” of Rule 8. See
Machibroda, 368 U.S. at 495–96 (noting that “the statute itself recognizes that there are
times when allegations of facts outside the record can be fully investigated without
requiring the personal presence of the prisoner”); Raines v. United States, 423 F.2d 526,
529–30 (4th Cir. 1970) (“[T]he statute makes a hearing mandatory,” but “a permissible
intermediate step . . . may avoid the necessity for an expensive and time consuming
evidentiary hearing in every Section 2255 case.”); cf. Blackledge v. Allison, 431 U.S. 63,
80–82 & n.25 (1977) (endorsing these procedures under the parallel § 2254 rules).
9
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additional briefing and evidence, but without holding an evidentiary hearing—“we treat
the district court’s decision like a grant of summary judgment.” Hashimi, 110 F.4th at 627;
see Blackledge, 431 U.S. at 80–81. So we will affirm a district court’s denial of relief
without a hearing when the record leaves “no genuine dispute as to any material fact.” Fed.
R. Civ. P. 56(a). In so doing, we do not weigh evidence or make credibility determinations.
Cf. Jacobs v. N.C. Admin. Off. of the Cts., 780 F.3d 562, 568–69 (4th Cir. 2015). And at
both the Rule 4 and Rule 8 stages, we draw all reasonable inferences in the movant’s favor.
Hashimi, 110 F.4th at 627; Paylor, 88 F.4th at 565.
Here, the district court asked for additional briefing and expansion of the record
before denying Flood’s § 2255 claim. It even held a non-evidentiary hearing. So the denial
in this case is akin to a grant of summary judgment: If the record conclusively shows that
Flood was not entitled to relief on his Sixth Amendment claim—meaning that the record,
crediting Flood’s factual allegations and drawing all reasonable inferences in his favor,
leaves no genuine dispute of material fact—then the district court could deny the motion
without an evidentiary hearing. Absent that showing, denying the claim without a hearing
is an abuse of discretion. The hearing question and the merits merge because a hearing is
owed only when crediting the movant would entitle him to relief. So in order to decide
whether the district court abused its discretion by denying Flood’s claim without an
evidentiary hearing, we must assess whether the record conclusively showed that Flood
could not satisfy the two prongs of his ineffective-assistance-in-pleading claim. We turn
next to what each prong requires.
10
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B. Sixth Amendment Claims For Ineffective Assistance Of Counsel In
Pleading
“[T]here is no constitutional right to plea bargain.” Weatherford v. Bursey, 429 U.S.
545, 561 (1977). “[A] defendant has no right to be offered a plea, nor a federal right that
the judge accept it.” Missouri v. Frye, 566 U.S. 134, 148 (2012) (citations omitted).
Nonetheless, criminal defendants have a right to effective assistance of counsel in “the
plea-bargaining process.” Lafler v. Cooper, 566 U.S. 156, 162 (2012); see also Padilla v.
Kentucky, 559 U.S. 356, 373 (2010); Hill v. Lockhart, 474 U.S. 52, 57 (1985).
When bringing a Sixth Amendment ineffective-assistance claim, the convicted
defendant bears the burden of showing (1) “counsel’s performance was deficient” and
(2) “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S.
668, 687 (1984). On the performance prong, a convicted defendant cannot simply assert
that counsel was ineffective; he “must identify the acts or omissions of counsel that are
alleged not to have been the result of reasonable professional judgment.” Id. at 690. And
on the prejudice prong, “[t]he defendant must show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. “It is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id. at 693.
Turning to the particulars of ineffective-assistance-in-plea-bargaining claims, the
Supreme Court has acknowledged that the question of “how to define the duty and
responsibilities of defense counsel in the plea bargain process” is “difficult.” Frye, 566
U.S. at 144. Indeed, “[t]he alternative courses and tactics in negotiation are so individual
11
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that it may be neither prudent nor practicable to try to elaborate or define detailed standards
for the proper discharge of defense counsel’s participation in the process.” Id. at 145. For
that reason, the Court’s holdings on counsel’s performance in plea bargaining have
remained case-specific.
When it comes to the prejudice prong, “a defendant must show the outcome of the
plea process would have been different with competent advice.” Lafler, 566 U.S. at 163.
Where the “prejudice alleged” is “[h]aving to stand trial” after ineffective assistance led to
the rejection of a plea offer, a defendant must show a reasonable probability that, but for
counsel’s deficient performance, (1) “the plea offer would have been presented to the court
(i.e., that the defendant would have accepted the plea and the prosecution would not have
withdrawn it in light of intervening circumstances),” (2) “the court would have accepted
its terms,” and (3) “the conviction or sentence, or both, under the offer’s terms would have
been less severe than under the judgment and sentence that in fact were imposed.” Id. at
163–64; see also Merzbacher v. Shearin, 706 F.3d 356, 366 (4th Cir. 2013). 8
8
In this Circuit, a movant who rejected a plea offer need not produce
contemporaneous evidence corroborating his claim that he would have accepted the offer
if counsel advised him competently; his own allegation to that effect, if credible, may
suffice. United States v. Brown, 137 F.4th 248, 255 (4th Cir. 2025); but see Lee v. United
States, 582 U.S. 357, 369 (2017) (explaining that courts should not upset an accepted plea
offer based solely on post hoc assertions about how the defendant would have pleaded, and
therefore should look to contemporaneous evidence substantiating his claim). But that rule
does not help Flood. Brown relieves a movant of the need to corroborate his assertion; it
does not relieve him of the need to make one. Here, Flood never alleges that he would
have accepted the kind of offer the government was willing to make—one conditioned on
cooperation. So there is no assertion to credit, with or without corroboration.
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III. THE DISTRICT COURT PROPERLY DENIED FLOOD’S § 2255 CLAIM
WITHOUT AN EVIDENTIARY HEARING
The district court would have needed to hold an evidentiary hearing if the record—
drawing all reasonable inferences and resolving genuine disputes in Flood’s favor—
showed that Flood could satisfy both Strickland prongs. See Mayhew, 995 F.3d at 176–77.
A bare allegation will not do, and neither will a disputed fact that has no bearing on the
outcome. The record conclusively shows that Flood’s claim fails twice over—on
performance and on prejudice—so the district court was not required to hold a hearing
before denying his § 2255 motion.
One point of scope before the merits. Flood does not pursue a claim that counsel
failed to tell him about the government’s interest in a proffer so that he could make the
decision. At oral argument, when asked if Flood brought a failure-to-communicate claim,
counsel responded “that would be a Frye claim and we’re not bringing a Frye claim here.”
See Oral Argument at 40:00–41:17, United States v. Flood, No. 23-7032 (4th Cir. Oct. 24,
2025); Frye, 566 U.S. at 145–47. Flood did not raise this claim in his § 2255 motion, and
we granted a certificate of appealability based only on Flood’s claim that his counsel
“rendered ineffective assistance by failing to pursue a plea agreement on his behalf,” not a
claim that they rendered ineffective assistance by failing to tell him that the government
expressed interest in negotiating a plea if he agreed to cooperate. 9 The claim we do
9
We need not decide whether counsel’s failure to communicate the government’s
overture could support a distinct Sixth Amendment claim. See Frye, 566 U.S. at 145
(“[D]efense counsel has the duty to communicate formal offers from the prosecution to
(Continued)
13
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decide—indeed the only claim before us—is whether Flood’s counsel was ineffective in
the plea-bargaining process.
A. Performance
Flood’s performance theory fails at the threshold. A convicted defendant “must
identify the acts or omissions of counsel that are alleged not to have been the result of
reasonable professional judgment.” Strickland, 466 U.S. at 690. Flood never does. And
however favorably we read the record, we cannot find counsel’s performance deficient
without knowing what counsel did wrong. 10
In his brief, Flood says that his counsel rendered ineffective assistance “when they
failed to seek a plea agreement.” Appellant Br. at 17. He also says counsel “never even
engaged in plea discussions.” Id. But in the same brief, Flood acknowledges that when
the government approached his counsel about the prospect of a plea, his counsel met with
the prosecutors to discuss a potential plea agreement. Id. at 5–6, 19. In those discussions,
the government made clear “that in order to receive an offer, Mr. Flood would have to
proffer.” Id. at 6 (quoting Lawlor’s Affidavit).
However Flood frames counsel’s alleged deficiency, the claim fails. Read as a
charge that counsel “never even engaged in plea discussions,” id. at 17, it founders on the
record: By Flood’s own admission, his counsel met with the prosecutors and learned that
accept a plea on terms and conditions that may be favorable to the accused.” (emphasis
added)).
10
The district court assumed deficient performance and rested its denial on prejudice
alone. Flood, 345 F. Supp. 3d at 612–13. We could affirm on that ground alone, but the
record conclusively shows that Flood failed on both.
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the government’s terms required cooperation. 11 Read instead as a charge that counsel,
having met with prosecutors to discuss a plea, should have done something more or pressed
harder, it identifies no act or omission that fell outside the wide range of reasonable
professional assistance. “Try harder” or “do more” is not a Strickland theory. See Oral
Argument at 1:10–3:03, United States v. Flood, No. 23-7032 (4th Cir. Oct. 24, 2025)
(arguing that trial counsel should have had “the singular objective” of “find[ing] a way to
plea this case out,” without explaining what that “way” should have been).
On Strickland’s performance prong, defendants “must identify the acts or omissions
of counsel that are alleged not to have been the result of reasonable professional judgment.”
466 U.S. at 690. Without knowing what counsel did wrong, we cannot assess whether his
assistance was deficient—or, at the prejudice stage, whether it made any difference. 12
11
This is not a case where no plea discussions occurred, or where the government
initiated talks and defense counsel did nothing. Our decision therefore does not bear on
those cases. Cf. United States v. McNeil, 126 F.4th 935, 945–47 (4th Cir. 2025) (remanding
for a hearing where the movant identified a specific omission—counsel’s refusal to do
anything to seek a plea despite his client’s repeated requests that he do so). Nor does it
reach the broader question of whether a defendant may claim ineffective assistance in plea
bargaining absent a formal plea offer—an issue that has divided the courts of appeals. See
Byrd v. Skipper, 940 F.3d 248, 255 (6th Cir. 2019) (permitting such a claim without a
formal offer); id. at 263–68 (Griffin, J., dissenting) (collecting cases requiring one).
Because Flood has not identified any particular act or omission, we leave that question
open.
12
We see this need for specificity on the performance prong in the Supreme Court’s
ineffective-assistance-in-pleading precedent—even where the Court decided the case on
prejudice grounds. (This makes sense: It is impossible for a court to determine whether
an act or omission changed the outcome on the prejudice prong without an adequate
understanding of the act or omission at issue.) See Lafler, 566 U.S. at 163 (noting that “all
parties agree” counsel’s performance “was deficient when he advised respondent to reject
the plea offer on the grounds he could not be convicted at trial”); Frye, 566 U.S. at 145
(Continued)
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Looking to Flood’s § 2255 motion itself, he claimed that “counsel rendered
constitutionally ineffective assistance by failing to resolve this case with a plea agreement.”
J.A. 42. But the failure to secure a plea cannot itself establish deficient performance under
Strickland. That is akin to arguing that counsel was deficient for failing to win at trial.
Effective lawyers fail to achieve their clients’ desired outcomes all the time. The Sixth
Amendment guarantees competent representation, not favorable results. Strickland’s
performance prong turns not on the outcome but on whether counsel’s acts or omissions
fell outside the wide range of reasonable professional competence. Strickland, 466 U.S. at
690.
Absent some specification of counsel’s deficient acts or omissions, the record and
filings conclusively show that Flood is not entitled to relief. See United States v. Dyess,
730 F.3d 354, 359 (4th Cir. 2013) (“Vague and conclusory allegations contained in a
§ 2255 petition may be disposed of without further investigation by the District Court.”
(cleaned up)); see also Machibroda, 368 U.S. at 495–96 (requiring a hearing on the
(holding, on the performance prong, that “defense counsel has the duty to communicate
formal offers from the prosecution to accept a plea on terms and conditions that may be
favorable to the accused”); Padilla, 559 U.S. at 360 (identifying the deficient performance
at issue as a failure to “advise [the defendant] that the offense to which he was pleading
guilty would result in his removal from this country”); Hill, 474 U.S. at 60 (identifying the
allegedly deficient performance as counsel’s erroneous advice about parole eligibility, then
resolving the case on prejudice). The same goes for this Court’s cases. See Brown, 137
F.4th at 250 (noting that counsel incorrectly advised defendant that he faced a ten-year
maximum sentence regardless of whether he accepted a plea offer); Merzbacher, 706 F.3d
at 365 (calling counsel’s alleged failure to convey and counsel on a ten-year plea offer “a
very close question” on performance, then resolving the case on prejudice). None of these
cases involve a convicted person claiming that counsel should have simply tried harder or
done more.
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movant’s “specific and detailed factual assertions,” while explaining that the “language of
the statute does not strip the district courts of all discretion to exercise their common sense”
and that “vague, conclusory, or palpably incredible” allegations require none). 13
B. Prejudice
Even if Flood could clear the performance prong, the record conclusively shows
that he cannot establish prejudice. To establish prejudice, he must show a reasonable
probability that, but for counsel’s putatively deficient performance: the government would
have extended a plea offer, he would have accepted it, the government would not have
withdrawn it, the court would have accepted its terms, and those terms would have yielded
a lesser sentence. Cf. Lafler, 566 U.S. at 164. 14 “A reasonable probability is a probability
13
It does not matter that Lawlor himself said he believed his assistance was
ineffective. Whether performance was deficient is a legal question, and counsel’s say-so
does not answer it. Lawlor’s affidavit identifies nothing that he should have done
differently beyond trying harder or doing more. That he regrets falling short of what he
considers reasonable standards does not establish that he actually did. Flood’s plea
statistics and Purpura’s affidavit are also irrelevant. Neither helps identify the particular
acts or omissions of trial counsel that amounted to deficient performance. We do not doubt
the statistics, but figures about plea bargaining in general say little about what competent
representation required in this particular case, which involved a death-penalty-eligible
offense carrying a mandatory life sentence. And Purpura’s affidavit, which states that he
could not “fathom not seeking a plea” in Flood’s position, J.A. 80, runs up against the
record: Counsel did discuss a plea with the government, even if only on the eve of trial.
Stripped of the premise that counsel never “[sought] a plea,” Purpura’s objection reduces—
once again—to the charge that counsel simply should have tried harder or done more.
14
Lafler provides a prejudice test for cases in which counsel’s bad advice led a
defendant to reject an existing plea offer and stand trial. 566 U.S. at 163–64. It therefore
does not squarely govern cases like this one, where the government never offered a plea,
but merely expressed interest in negotiating one. Lafler is still the closest analogue. So
we assume a modified Lafler test would apply: one requiring the defendant to show a
reasonable probability not only of the factors Lafler identifies, but also that he would have
(Continued)
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sufficient to undermine confidence in the outcome,” Strickland, 466 U.S. at 694, requiring
“a substantial, not just conceivable, likelihood of a different result.” Cullen v. Pinholster,
563 U.S. 170, 189 (2011) (cleaned up). 15
The chain breaks at acceptance: The record conclusively shows no reasonable
probability that Flood would have accepted the kind of plea offer the government was
willing to make. Nothing in the record—no affidavit, no allegation, no reasonable
inference—shows a reasonable probability that either (1) the government would have
considered a plea offer that did not involve a proffer and cooperation, or (2) Flood would
have accepted an offer that required a proffer and cooperation. Since there is no dispute of
material fact, the district court properly denied the motion without a hearing. 16
received a plea offer in the first place. And we do so without deciding whether a convicted
defendant may bring a Strickland claim without first having received a plea offer. See
supra note 11.
15
The standard of review here has three layers, each nested inside the one before it,
like a matryoshka doll. We review the denial of an evidentiary hearing for abuse of
discretion. And a court abuses that discretion when it denies a hearing despite a record that
does not conclusively show that the movant is not entitled to relief. And whether the record
conclusively shows that turns on the merits of Flood’s Strickland claim, which asks
whether there is a “reasonable probability” that his sentence would have been lower. So
our inquiry collapses into a single question: whether the record conclusively forecloses a
reasonable probability of a lower sentence.
16
We thus assume that, if Flood had cooperated, the government would have offered
a plea agreement that opened the door to a sentence less than life. See 18 U.S.C. § 3553(e)
(authorizing a sentencing court, upon the government’s motion, to impose a sentence below
an otherwise applicable statutory minimum “so as to reflect a defendant’s substantial
assistance in the investigation or prosecution of another person”). We also assume that the
district court would have accepted such an agreement, even though the record tells us
nothing of its terms beyond requiring “a truthful proffer and cooperation.” J.A. 226.
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First, cooperation was non-negotiable, and both sides’ affidavits say so. Lawlor
recalled the prosecutors’ condition: to receive an offer, Flood had to proffer. And
Wilkinson swore that the government would not offer a plea agreement without a truthful
proffer and cooperation.
Second, the record shows that there was no reasonable probability that Flood was
willing to proffer and cooperate in exchange for a lower sentence. Wilkinson’s affidavit
states that “[b]ased on our interactions with [Flood] and counsel . . . we believed that
[Flood] did not want to and would not testify against his co-conspirators.” J.A. 226. While
Lawlor’s affidavit says any plea would have required cooperation, it never says Flood was
willing to give it. It says only that Flood “did not indicate he would not plead guilty” and
“was not reluctant” to plead guilty. J.A. 96. That allegation does not, without more,
support an inference that Flood was willing to provide a truthful proffer and cooperation
against his friends.
Nor does Flood’s affidavit say anything about cooperation. Flood says that “[a]ll
[he] wanted to do was avoid getting a life sentence,” and that he “was hoping [he] could
get a plea and get a lower sentence.” J.A. 92. Even read in his favor, this does not indicate
that Flood would have accepted the cooperation condition. While we must credit the
allegations he makes, we cannot put words in his mouth. Cf. Hashimi, 110 F.4th at 632. 17
17
In Hashimi, the movant swore that he never authorized his counsel’s concession
of guilt, and we credited that allegation; the only contrary account was “pure speculation”
that the record did not support, so a hearing was required to resolve the dispute. 110 F.4th
at 632. Here the posture is reversed. Flood swears he wanted to avoid a life sentence and
hoped for a plea. He does not swear that he would have proffered, cooperated, and testified
(Continued)
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Ultimately, Flood acknowledges that cooperation was the price of any plea but never
alleges that he would have paid it. His own § 2255 memorandum acknowledged that the
government would require a proffer before any offer was made. Lawlor’s 2012 declaration
and Wilkinson’s 2017 affidavit put the cooperation condition squarely on the record. Yet
through years of litigation—including a hearing devoted to whether an evidentiary hearing
was needed—Flood never swore that he would have proffered and testified against his coconspirators. 18 So finding that he would have done so would rest on “rank speculation,
defying calculation of a reasonable probability.” See United States v. Basham, 789 F.3d
358, 375 (4th Cir. 2015) (quoting United States v. Fulks, 683 F.3d 512, 522 (4th Cir.
2012)); see also Carson v. United States, 88 F.4th 633, 636 (6th Cir. 2023) (“[O]nly
speculation supports [the] claim that the parties would have reached a deal but for counsel’s
inaction.”). The record thus gave the district court no basis to find that Flood would have
accepted the only kind of offer the government would have made. Without that finding,
against the men who helped him kidnap and kill Hayes—the precondition to any plea—
and the only record evidence on the point cuts against him. So, even crediting everything
that Flood alleged and drawing every reasonable inference from it, the dispositive fact
remains unalleged. So any claim of prejudice is speculative. In Hashimi, the autonomy
claim required no showing of prejudice, so a single favorable inference on the disputed fact
warranted a hearing. Flood’s claim, however, does require prejudice, and no inference can
manufacture an element that he never pleaded and the record nowhere supports.
18
Indeed, what the record affirmatively shows cuts the other way. Flood’s defense
at trial was that “he was not a participant in the Hayes kidnapping and murder.” Lighty,
616 F.3d at 349. Before trial, he hid the car, lied to the grand jury about it, and asked his
uncle to lie as well. Flood maintained his innocence under oath and obstructed the
investigation, so the record does not suggest that he would have proffered, cooperated, and
testified against the men who helped him kidnap and kill Hayes. See Ramirez v. United
States, 751 F.3d 604, 608 (8th Cir. 2014) (finding that movant suffered no prejudice where
he “never expressed a willingness to cooperate”).
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prejudice is not reasonably probable; it is speculative. And speculation entitles a movant
to nothing—not relief, and not a hearing.
Flood nonetheless contends that the record contains disputes of material fact that
would permit a finding of prejudice. He is wrong.
Flood argues that Wilkinson’s affidavit created a dispute of material fact when it
said, “we did not offer, and would not have offered, any plea agreement to the defendant
even if counsel had requested one.” J.A. 226. He argues that an evidentiary hearing is
required because this leaves unclear whether the government would have offered a
cooperation-based plea or no plea at all. But this suggestion ignores the context. The full
statement reads:
The victim’s family articulated their desire that each of the Defendants
receive the maximum sentence possible. We believed that absent
cooperation, Flood should receive a life sentence. We would not offer any
plea agreement that did not include a truthful proffer and cooperation. Based
on our interactions with the defendant and counsel as early as the
investigation stage pre-indictment, we believed that the defendant did not
want to and would not testify against his co-conspirators. We were of the
opinion that any plea offer that would have been acceptable to us would not
have been acceptable to the defendant. Hence, we did not offer, and would
not have offered, any plea agreement to the defendant even if counsel had
requested one.
J.A. 226. In context, Wilkinson’s statement reflects a belief that Flood should get a plea
bargain only if he truthfully proffered and cooperated, that he did not want to cooperate,
and, therefore, that the government would not have offered a plea. This is fully consonant
with other parts of the record, like Lawlor’s affidavit, which shows that the government
was willing to extend an offer only with Flood’s cooperation. See J.A. 109 (government
counsel representing that it “would not have even contemplated a plea offer absent
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cooperation from Flood”). And Flood did not express any willingness to take that kind of
offer.
Even crediting Lawlor’s account in full, no material factual dispute remains. Lawlor
says that the government reached out, that counsel rejected the overture, and that counsel
had no strategy. But Flood still loses, because cooperation was the price of any deal and
he never says he would have paid it. Where crediting the movant still yields defeat, no
credibility finding is necessary, and § 2255(b) requires no hearing. Flood’s silence is not
a dispute. Cf. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (“[A] complete failure
of proof concerning an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.”). It is a gap, and the gap is his to fill. 19
* * *
Flood identifies no act or omission that could establish deficient performance, and
no factual dispute whose resolution could establish prejudice. Even on the version of
events most favorable to him, the record conclusively shows that he is not entitled to relief.
The district court therefore did not abuse its discretion in declining to hold an evidentiary
hearing.
19
The district court incorrectly suggested that evidentiary hearings on § 2255
motions are “the exception, not the norm, and there is a heavy burden on the petitioner to
demonstrate that an evidentiary hearing is warranted.” Flood, 345 F. Supp. 3d at 614
(cleaned up). This was an error. The statute imposes no heavy burden and creates no
default against hearings. Still, the district court then applied the correct standard—i.e.,
whether the record “conclusively show[s] that the prisoner is entitled to no relief”—in
concluding that no evidentiary hearing was required. Id. The misstatement was therefore
harmless. See 28 U.S.C. § 2111 (directing appellate courts to disregard errors “which do
not affect the substantial rights of the parties”); Fed. R. Crim. P. 52(a) (“Any error, defect,
irregularity, or variance that does not affect substantial rights must be disregarded.”).
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AFFIRMED
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TOBY HEYTENS, Circuit Judge, dissenting:
I would vacate and remand for an evidentiary hearing. Under this Court’s precedent,
such “a hearing is required when a movant presents a colorable Sixth Amendment claim
showing disputed facts beyond the record, or when a credibility determination is necessary
to resolve the claim.” United States v. Mayhew, 995 F.3d 171, 176–77 (4th Cir. 2021)
(emphasis added). The district court did not apply that standard in determining whether
Flood’s case warranted a hearing. That alone was an abuse of discretion. What is more, the
district court also erred by disregarding record evidence “suggesting [Flood] would have
accepted [a plea] offer” (JA 248)—evidence that rendered the court’s no-prejudice holding
untenable. *
To start, the district court announced—and, in my view, applied—the wrong legal
standard in determining whether an evidentiary hearing was warranted. The court began its
discussion by quoting the relevant statutory language and a non-precedential 2012 decision
from this Court announcing the correct legal standard. But immediately after doing so, the
district court went astray by quoting another district court opinion for the proposition that—
“[n]otwithstanding” what both the statutory text and this Court’s precedent say—“it is
settled that evidentiary hearings on [Section] 2255 petitions are the exception, not the norm,
*
The district court did not decide whether the record conclusively showed Flood’s
trial counsel was not deficient and instead assumed that counsel was deficient. See JA 247.
Consistent with this Court’s role as one of review rather than first view, I would decline to
decide in the first instance the fact-specific question of whether Flood can succeed in
satisfying Strickland’s performance prong.
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and there is a heavy burden on the petitioner to demonstrate that an evidentiary hearing is
warranted.” JA 249 (alterations and quotation marks removed; emphases added).
None of that is true. As the statutory text and this Court’s precedent make clear, the
default presumption is in favor of a hearing, not against one. See Mayhew, 995 F.3d at 176
(“A district court must hold an evidentiary hearing on a petitioner’s Strickland claim
‘unless the motion and the files and records of the case conclusively show that the prisoner
is entitled to no relief.’ ” (quoting 28 U.S.C. § 2255(b); emphasis added; alterations
removed)). Nor does the district court’s opinion identify any authority for the proposition
that Flood had to carry “a heavy burden” just to get a hearing. JA 249.
But even if the district court had set out the correct standard, it erred in concluding
Flood could not show Strickland prejudice as a matter of law. Despite acknowledging that
the affidavit Flood submitted in support of his motion was “evidence” “suggesting he
would have accepted [a plea] offer” had one been made, the district court discredited that
evidence because it was “self-serving” and offered “after-the-fact.” JA 248.
That reasoning is also inconsistent with binding precedent. In Mayhew, this Court
held that a different Section 2255 petitioner’s “declaration under penalty of perjury” was
“evidence” that was “enough to put the [Strickland] question at issue”—thereby requiring
the district court to hold an evidentiary hearing. 995 F.3d at 178. What is more, Mayhew
rejected government-proffered arguments that mirrored the district court’s reasoning in this
case: that Section 2255 movants must “substantiate[]” their own factual assertions to obtain
an evidentiary hearing or that a district court may dispense with one if it concludes a
movant’s own account “lacks all credibility” because it is self-serving or was first made
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“well after [the movant’s] trial and sentencing.” Id. at 178–79. As Mayhew reminds us,
evaluating “credibility” “is what evidentiary hearings are for.” Id. (emphasis added).
Nor was discounting Flood’s affidavit a harmless error. In my view, a factfinder
who credited the assertions in Flood’s affidavit could—contra the district court’s holding—
conclude that Flood was prejudiced by his attorney’s actions in this case. In his affidavit,
Flood asserts: “All I wanted to do was avoid getting a life sentence.” JA 92 (emphasis
added). Because “all” most naturally means “all,” a reasonable factfinder could permissibly
conclude that Flood would have been willing to do anything necessary—including, of
course, cooperate with the government—to receive a plea offer and enter that plea
successfully. The record contains evidence that the government was interested in reaching
a plea deal too, because it approached defense counsel on the eve of trial to discuss the
potential of Flood cooperating and pleading. Assuming (as we must at this stage) the truth
of both of those things, a reasonable factfinder could well find that—but-for the
deficiencies in performance that the district court assumed for purposes of its analysis—
Flood and the government would have reached a plea deal that would have been accepted
by the court.
Like this Court in Mayhew, I “express no view as to whether” Flood “ultimately can
prevail under . . . Strickland.” 995 F.3d at 181. “[A]fter a hearing,” the district court “may
find that [Flood’s] account . . . is not accurate, or that his allegations otherwise lack
credibility.” Id. “Or the court might find that a fuller record substantiates the government’s
position that” Flood would not have successfully pleaded, stumbling at any of the
intermediate steps. Id. As in Mayhew, I would hold “simply that the current record does
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not ‘conclusively’ foreclose [Flood’s] Strickland claim, and that [Flood] therefore is
entitled to an evidentiary hearing under [Section] 2255(b).” Id.
27