Rollie Mitchell v. USA
Filing
Filed opinion of the court by Judge Bauer. AFFIRMED. William J. Bauer, Circuit Judge; Daniel A. Manion, Circuit Judge and David F. Hamilton, Circuit Judge. [6813978-1] [6813978] [14-3759]
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In the
United States Court of Appeals
For the Seventh Circuit
No. 14‐3759
ROLLIE M. MITCHELL,
Plaintiff‐Appellant,
v.
UNITED STATES OF AMERICA,
Defendant‐Appellee.
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:12‐cv‐01002‐SEB‐TAB — Sarah Evans Barker, Judge.
ARGUED NOVEMBER 3, 2016 — DECIDED JANUARY 25, 2017
Before BAUER, MANION, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. After his conviction for cocaine
distribution, Petitioner Rollie Mitchell appealed his sentence;
this Court affirmed. Petitioner then filed a motion for post‐
conviction relief under 28 U.S.C. § 2255, claiming that he
received ineffective assistance of counsel. He argued that, prior
to trial, his attorney failed to inform him adequately of the
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details of the government’s plea offer and failed to advise him
of the potential ramifications of rejecting the offer and proceed‐
ing to trial. The district court denied the motion, finding that
counsel’s performance was adequate and that Petitioner could
not demonstrate that, absent any deficient performance, he
would have accepted the plea offer. We affirm.
I. BACKGROUND
In June 2006, Petitioner sold 144 grams of cocaine base to a
police informant named Tony Hurd. Hurd also purchased
cocaine base from two of Petitioner’s associates, Billy Hicks
and Tyree Smith. All three were charged in Indiana state court
with controlled substance offenses. As part of the state court
proceedings, the county clerk’s office made the error of
including Hurd’s name on a public filing. Hurd soon began
receiving threats, and in August 2006, he was shot and killed
at a gas station in Ohio.
After Hurd’s murder, Petitioner was indicted on federal
drug charges. The government also had reason to believe that
Petitioner was involved in Hurd’s murder. In June 2009, the
district court appointed public defender Bruce Brattain to
represent Petitioner. As the trial date approached, Brattain had
discussions with the Assistant United States Attorney handling
the case about a potential plea agreement. The AUSA informed
Brattain that the government was willing to recommend a 20‐
year sentence in exchange for Petitioner’s full cooperation with
the government’s investigation into Hurd’s murder. The
government never put this offer in writing.
Brattain communicated to Petitioner the terms of the offer
both orally and in writing. According to Brattain’s affidavit
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submitted to the district court, he met with Petitioner and
discussed the proposal on October 19, October 23, and Novem‐
ber 5, 2009, and Petitioner repeatedly rejected the potential
agreement. On October 29, 2009, Brattain sent Petitioner a letter
in which he outlined the principal terms of the government’s
offer and advised Petitioner that it was in his best interest to
consider it before trial.
Brattain sent another letter on November 3, 2009, in which
he informed Petitioner that the government’s evidence made
it “almost absolutely certain” that he would be convicted at
trial on the drug charge. This letter also referenced a new
witness who would corroborate the government’s theory that
Petitioner was involved in Hurd’s murder. The letter informed
Petitioner that if the court found the witness to be credible by
a preponderance of the evidence, Petitioner was likely to face
a life sentence upon his conviction. Finally, this letter advised
Petitioner that if he wished to negotiate a lesser sentence, “now
is the time to do it.”
Petitioner again rejected the government’s offer and his
case went to trial on November 9 and 10, 2009. The jury found
him guilty of distributing 50 grams or more of cocaine base in
violation of 21 U.S.C. § 841(a)(1). The district court held a
sentencing hearing on April 1, 2010, during which the govern‐
ment presented evidence of Petitioner’s involvement in Hurd’s
murder. The court found, by a preponderance of the evidence,
that Petitioner participated in the murder, and applied the
murder cross‐reference under the United States Sentencing
Commission Guidelines, § 2D1.1(d)(1). The court sentenced
Petitioner to life imprisonment, which was the resultant
Guidelines range after the application of the murder cross‐
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reference. Petitioner appealed the sentence, and we affirmed.
United States v. Mitchell, 635 F.3d 990, 991 (7th Cir. 2011).
Petitioner then filed a motion for post‐conviction relief
under 28 U.S.C. § 2255, contending that Brattain provided
ineffective assistance of counsel by not producing the govern‐
ment’s plea offer in writing and by not advising him ade‐
quately on its substance and effects. The district court rejected
these arguments. The court found that the government never
submitted its proposal in writing and that, even if it had done
so, Petitioner could not demonstrate that he would have
accepted the offer. The court held that Brattain’s communica‐
tion and advice regarding the proposed plea deal did not
constitute ineffective assistance. The court also rejected Peti‐
tioner’s request for an evidentiary hearing on the issue, finding
that the record and filings conclusively showed that Petitioner
was not entitled to relief. The denial of his motion and his
request for an evidentiary hearing form the basis for this
appeal.
II. DISCUSSION
When reviewing the denial of a petition under 28 U.S.C.
§ 2255, we review the district court’s legal conclusions de novo
and its factual findings for clear error. Martin v. United States,
789 F.3d 703, 705 (7th Cir. 2015) (citation omitted).
“The Sixth Amendment right to effective assistance of
counsel extends to the plea bargaining process.” Id. at 706
(citing Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012)). To establish
his claim for ineffective assistance, Petitioner must demon‐
strate both prongs of the test established by Strickland v.
Washington, 466 U.S. 668 (2012). First, he “must show that
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counsel’s representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. Once he has
demonstrated deficient performance, Petitioner must then
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. Petitioner is unable to
meet his burden on either prong.
Petitioner argues that Brattain’s representation was
deficient in that he did not provide sufficient detail of the
government’s offer, that he failed to explain fully the ramifica‐
tions of rejecting the offer, and that he did not make Petitioner
aware of the offer in a timely manner. “[D]efense 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.” Missouri v. Frye, 132 S. Ct. 1399, 1408 (2012); see
also Lafler, 132 S. Ct. at 1387 (“If a plea bargain has been
offered, a defendant has the right to effective assistance of
counsel in considering whether to accept it.”). “Frye does not
consider whether counsel furnish ineffective assistance by
failing to convey a plea offer ‘effectively’; we assume without
deciding that counsel must do so.” Overstreet v. Wilson, 686
F.3d 404, 406–07 (7th Cir. 2012).
Petitioner first argues that Brattain failed to communicate
the offer effectively because he did not provide details outside
of the principal terms of a 20‐year sentence in exchange for
Petitioner’s cooperation in the murder investigation. There is
no indication, however, that there were any such details for
him to convey. The district court found that the government
never put the proposal in writing and Petitioner has not
produced any evidence to contradict that finding. Nor does
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Petitioner offer evidence that Brattain and the government had
any discussions beyond what Brattain communicated to him.
Petitioner cannot identify any details that Brattain knew, yet
failed to communicate to him. Brattain effectively communi‐
cated all of the information that was available to him at the
time of the offer and thus, this argument fails.
Petitioner then contends that Brattain’s representation was
ineffective because he failed to adequately advise Petitioner of
the potential outcomes of rejecting the offer and going to trial.
He argues that Brattain should have done more to explain the
applicable Sentencing Guidelines and the sentence he would
face if convicted. Brattain’s letters, however, clearly defeat this
contention. In his October 29, 2009, letter, Brattain advised
Petitioner that it was in his best interest to consider the govern‐
ment’s offer because a guilty verdict at trial could result in a
“sentence greater than twenty years.” In the November 3, 2009,
letter, Brattain informed Petitioner of a new government
witness and advised Petitioner that if the court found the
witness credible, “I now believe that you will be looking at life
in prison upon your conviction.” It is difficult to imagine what
more effective advice Brattain could have provided regarding
the effects of rejecting the plea offer. Therefore, Petitioner’s
argument that Brattain’s performance was deficient on this
point also fails.
Lastly, Petitioner claims that Brattain was ineffective
because he did not inform Petitioner of the offer until the day
his trial began. Again, however, Brattain’s letters show that
Petitioner’s claim is incorrect. Brattain sent Petitioner a letter
on October 29, 2009, ten days before trial, outlining the terms
of the plea offer. That letter also indicates that Brattain and
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Petitioner had already “spoken of [the offer] several times.”
Brattain sent Petitioner another letter on November 3, 2009,
advising Petitioner that if he wished to negotiate a sentence of
less than life in prison, “now is the time to do it.” Additionally,
Brattain’s affidavit states that he and Petitioner discussed the
proposed agreement as early as October 19, 2009. Thus, it is
clear that Brattain effectively communicated the offer to
Petitioner with ample time for him to consider it.
For the reasons just explained, Petitioner has failed to
demonstrate that Brattain’s performance fell below an objective
standard of reasonableness. Therefore, Brattain’s communica‐
tion and advice regarding the plea offer did not constitute
deficient performance.
However, even if we were to determine that Brattain’s
representation was deficient, Petitioner’s claim still fails
because he cannot establish Strickland’s prejudice requirement.
To show prejudice in the context of the handling of plea offers,
“defendants must demonstrate a reasonable probability they
would have accepted the earlier plea offer had they been
afforded effective assistance of counsel.” Frye, 132 S. Ct. at
1409. Petitioner is unable do so here.
Petitioner has admitted, both in the district court and in his
brief before this Court, that he cannot say with certainty that he
would have accepted the government’s offer. He argues that he
cannot do so because he did not receive “the full terms” of the
offer due to Brattain’s deficient performance. However,
because Petitioner rejected the general framework of the
government’s offer, the negotiation of further details never
began. Petitioner cannot point to any conditions of the govern‐
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ment’s offer that Brattain failed to communicate to him. As a
result, he cannot show a reasonable probability that, but for
some failure on Brattain’s part, he would have accepted the
government’s offer. Therefore, Petitioner cannot establish the
prejudice prong of his Strickland claim.
Finally, we briefly address Petitioner’s argument that the
district court erred in denying his request for an evidentiary
hearing. We review the district court’s denial of an evidentiary
hearing on a § 2255 motion for abuse of discretion. Martin, 789
F.3d at 705. An evidentiary hearing is not required if “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);
Martin, 789 F.3d at 706. That is the case here.
The district court was able to determine, from the record
alone, that the government had not reduced its plea offer to
writing and had not set forth any details or conditions other
than its offer to recommend a 20‐year sentence in exchange for
Petitioner’s cooperation in the murder investigation. Brattain’s
letters demonstrated that Petitioner learned of the offer at least
ten days before his trial, despite his contention that he first
heard the offer on the day of trial. Finally, Petitioner admitted
in his motion that he could not say definitively that he would
have accepted the government’s offer but for Brattain’s
supposed ineffective assistance. The district court did not
abuse its discretion in denying Petitioner’s request for a
hearing.
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III. CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
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