Hecke v. USA
Filing
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OPINION AND ORDER DENYING Motion to Vacate Under 28 U.S.C. 2255 by Steven J Hecke. Signed by Judge Theresa L Springmann on 9/25/13. (cer)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
UNITED STATES OF AMERICA
v.
STEVEN J. HECKE
)
)
)
)
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CAUSE NO.: 1:07-CR-18-TLS
RELATED CAUSE NO.: 1:11-CV-28-TLS
OPINION AND ORDER
This matter is before the Court on Defendant Steven J. Hecke’s Motion to Vacate, Set
Aside, or Correct a Sentence by a Person in Federal Custody [ECF No. 84], filed on January 14,
2011. The Government filed a Response [ECF No. 88] on January 28, 2011, addressing only the
waiver provision of the Plea Agreement. On February 7, 2011, the Defendant filed a Reply [ECF
No. 89]. On March 12, 2013, the Court entered an Order [ECF No. 100] discussing the
Defendant’s ineffective assistance of counsel and involuntariness claims that arguably related to
the negotiation of the plea itself. Finding that additional briefing was appropriate, the Court
directed the Government to file any response to the merits of the Defendant’s Motion to Vacate
by April 26, 2013, and afforded the Defendant until May 28, 2013, to submit any reply. The
Government filed a Second Response [ECF No. 101] on April 25, and the Defendant filed a
Second Reply [ECF No. 102] on May 10. On August 7, the Defendant filed a Letter [ECF No.
106] requesting a status update on his case and a Motion for Consideration of Newly
Promulgated Law [ECF No. 107].
BACKGROUND
On February 22, 2007, the Government filed a Complaint [ECF No. 1] against
theDefendant, Steven J. Hecke. The Government filed an Indictment [ECF No. 13] on February
28, 2007, and arraigned the Defendant on March 2. The Indictment charged the Defendant with
two counts of distribution of less than 500 grams of cocaine, in violation of 21 U.S.C.
§ 841(a)(1) (Counts 1 and 2); possession with the intent to distribute 500 grams or more of
cocaine, in violation of 21 U.S.C. § 841(a)(1) (Count 3); and knowingly possessing firearms in
furtherance of the possession with intent to distribute alleged in Count 3, in violation of 18
U.S.C. § 924(c) (Count 4). The Indictment also included a forfeiture allegation concerning the
five firearms listed in Count 4.
The Defendant filed a Motion to Suppress [ECF No. 31] on July 26, 2007. The Court
denied the Motion to Suppress in an Order and Opinion [ECF No. 46] dated December 10, 2007.
Then on April 29, 2008, the Government filed into the record a Plea Agreement [ECF No. 53]
signed by the Defendant and his retained attorneys, Richard Kammen and Steven Gray, along
with counsel for the Government. In his Plea Agreement, the Defendant agreed to plead guilty to
Counts 3 and 4 of the Indictment in exchange for dismissal of Counts 1 and 2, and the
Government agreed to recommend a sentence equal to the minimum of the Guidelines range.
In paragraph 7h, the Defendant reserved his right to appeal as follows:
Although I am waiving all the rights set forth in paragraph 7d, I am specifically
preserving my right to appeal to the Seventh Circuit Court of Appeals the issues
decided by this court in its Order and Opinion signed and filed on December 10,
2007 regarding the motion to suppress I filed on July 26, 2007.
(Plea Agreement ¶ 7h, ECF No. 53.)
Moreover, in the Plea Agreement, the Defendant stated that he understood the rights he
was waiving by pleading guilty. He confirmed his understanding that the Court, using the
applicable United States Sentencing Guidelines, would determine an appropriate sentence. The
Plea Agreement set forth the possible penalties for the two Counts. The Defendant stated his
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belief that his attorneys had “done all that anyone could do to counsel and assist” him. (Id.
¶ 10.) He declared that he was offering his “plea of guilty freely and voluntarily and of [his] own
accord,” that “no promises ha[d] been made to [him] other than those contained in” the Plea
Agreement, and that he had not been “threatened in any way by anyone to cause [him] to plead
guilty in accordance with” the Plea Agreement. (Id. ¶ 11.) With respect to his appellate rights,
the Defendant stated:
I understand that the law gives a convicted person the right to appeal the conviction
and the sentence imposed, I also understand that no one can predict the precise
sentence that will be imposed, and that the Court has jurisdiction and authority to
impose any sentence within the statutory maximum set for my offense(s) as set forth
in this plea agreement; with this understanding and in consideration of the
government’s entry into this plea agreement, I expressly waive my right to appeal or
to contest my conviction and my sentence and any restitution order imposed or the
manner in which my conviction or my sentence or the restitution order was
determined or imposed, to any Court on any ground, including any claim of
ineffective assistance of counsel unless the claimed ineffective assistance of counsel
relates directly to this waiver or its negotiation, including any appeal under Title 18,
United States Code, Section 3742 or any post-conviction proceeding, including but
not limited to, a proceeding under Title 28, United States Code, Section 2255.
(Id. ¶ 7g.)
At the May 28, 2008, change of plea hearing, the Defendant appeared in person,
represented by attorney Kammen. The Defendant pled guilty to Counts 3 and 4 of the Indictment
in accordance with his Plea Agreement. The Defendant took an oath and the Court confirmed
that the Defendant was fully competent and capable of entering an informed plea, that the
Defendant was aware of the charges against him and the consequences of his plea, and that his
plea of guilty was a knowing and voluntary plea supported by an independent basis in fact
containing each of the essential elements of the offense. The Defendant stated that he was
satisfied with attorney Kammen’s representation and advice, that he had an opportunity to read
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and discuss his Plea Agreement with his lawyer before signing it, that he understood its terms
and there was nothing in the Plea Agreement he did not understand, that he had not been
threatened or coerced in any way to sign the Plea Agreement, that no one had made any promises
or assurances of any kind to get him to plead guilty, and that he understood the Government
would be recommending he receive a sentence equal to the minimum of the applicable
Guidelines range. He also acknowledged that the Court could reject the Government’s
recommendation without letting him withdraw his plea. The Defendant stated his understanding
that the Court could impose a sentence more severe than he might anticipate. The Court
discussed the binding term of the Plea Agreement, namely the dismissal of Counts 1 and 2, and
the Defendant stated his understanding that if the Court accepted the Plea Agreement, the
binding term would be part of his judgment. He stated that he understood he was agreeing to
waive his right to appeal his conviction or sentence and the manner in which they were
imposed—except that he was preserving his right to appeal the Court’s Order and Opinion
denying his Motion to Suppress, that he understood he would be prohibited from collaterally
attacking his conviction or sentence or the manner in which they were imposed through a habeas
corpus petition, and that he was giving up his right to claim the ineffective assistance of legal
counsel unless the claimed ineffectiveness related directly to the appellate waiver or its
negotiation.
Concerning Counts 3 and 4, the Court read the Defendant the charges as stated in the
Indictment. Specifically, the Court read the Indictment’s Count 4 allegation that the Defendant
“did knowingly possess firearms . . . in furtherance of a drug trafficking crime.” (Plea Hr’g Tr.
27:20–28:3–4, ECF No. 105.) The Defendant stated his understanding that these were the counts
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to which he was pleading guilty. The Court then stated the elements of the offenses. In stating
the elements of Count 4, the Court stated as follows:
As to Count Four, there are two elements – first, you committed the crime of
possession with the intent to distribute cocaine as charged in Count Three; and
second, you knowingly used or carried a firearm during and in relation to that crime.
(Id. 29:4–8.) The Defendant stated his understanding that these were the elements of the two
charges to which he was pleading guilty. He also stated that he committed the charges as stated
in the Indictment. In his own words, the Defendant stated: “Well, basically, I possessed, I believe
it was like a thousand, twelve hundred grams of cocaine, and I possessed firearms in furtherance
of the crime.” (Id. 29:18–20.) The Defendant confirmed that he possessed all of the firearms
listed in Count 4, and that his intention was to distribute the cocaine he possessed, meaning to
“sell it and make a profit off it.” (Id. 30:24.) In response to the Court’s question, the Defendant
stated that he possessed the firearms “to protect [him]self.” (Id. 31:2.)
Assistant United States Attorney Robert Trgovich, for the Government, summarized the
evidence at the change of plea hearing. He listed the amounts of cocaine found in different
locations within the Defendant’s house pursuant to the search warrant, and described the five
firearms found in the house. He noted that “the pistol was found in the living room area where
drug transactions had occurred in the past.” (Id. 33:19–20.) The Defendant stated that he heard
all that attorney Trgovich had to say about the Government’s evidence against him, and that he
agreed with the Government’s summary in its entirety. The Court then accepted the Defendant’s
guilty plea on both Counts 3 and 4. The parties filed an Amended Plea Agreement [ECF No. 59]
on May 28, 2008, adding language formalizing the parties’ agreement that the Government
would recommend that the Defendant receive the minimum term of supervised release for
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Counts 3 and 4.
On August 11, 2008, the Court sentenced the Defendant to 60 months imprisonment on
Count 3 and 60 months imprisonment on Count 4 to run consecutively with Count 3. The Court
applied a two-level reduction in the offense level for acceptance of responsibility, and granted
the Government’s motion for an additional one-level reduction under U.S.S.G. § 3E1.1(b). The
Court entered a Judgment [ECF No. 63] on August 13, 2008, and an Amended Judgment [ECF
No. 64] on August 14.
The Defendant filed a Notice of Appeal [ECF No. 65] on August 18, 2008. In an
unpublished opinion, the Seventh Circuit discussed the Defendant’s appeal and the Anders brief
filed by court-appointed attorney Gabriel Benjamin Galloway, considering whether attorney
Galloway could present a nonfrivolous challenge to the denial of the Motion to Suppress. In spite
of the arguments raised by the Defendant in response to attorney Galloway’s Anders brief, the
Seventh Circuit determined that the arguments raised “would be frivolous.” United States v.
Hecke, 329 F. App’x 676, 677 (7th Cir. 2009). The Seventh Circuit denied the Defendant’s
request for a panel rehearing or a rehearing en banc on September 11, 2009. (Gov’t 2d Resp. 2,
ECF No. 101.) The United States Supreme Court denied certiorari on January 19, 2010. Hecke
v. United States, 558 U.S. 1158 (2010).
The Defendant now seeks to vacate, set aside, or correct his sentence pursuant to 28
U.S.C. § 2255 on the basis of an involuntarily and unknowingly entered guilty plea and
ineffective assistance of counsel. The Government, in its Response [ECF No. 88], argues that the
Defendant’s claims provide no basis for collateral relief because they have been waived. The
Defendant, in his Reply [ECF No. 89], argues that the waiver provision of his Plea Agreement
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does not bar his claims that he unknowingly and involuntarily pled guilty to Count 4, and that his
attorneys provided ineffective assistance relating to the negotiation of the plea.
In the Government’s Second Response [ECF No. 101], it now argues that no amendment
to Count 4 occurred at the change of plea hearing, and that the Defendant knowingly and
voluntarily pled guilty to Count 4. The Government also argues that the Defendant has failed to
show ineffective assistance of counsel at trial or on appeal. In his Second Reply [ECF No. 102],
the Defendant argues that where no party understands the essential elements of an offense at the
time of pleading guilty, a defendant’s understanding of his guilty plea is suspect. The Defendant
also maintains his ineffective assistance of counsel claims.
For the reasons articulated below, the Court agrees with the Government that the
Defendant’s claims do not entitle him to collateral relief.
ANALYSIS
Section 2255 allows a person convicted of a federal crime to vacate, set aside, or correct
his sentence. This limits relief to “‘an error of law that is jurisdictional, constitutional, or
constitutes a fundamental defect which inherently results in a complete miscarriage of justice.’”
Borre v. United States, 940 F.2d 215, 217 (7th Cir. 1991) (quoting Carreon v. United States, 578
F.2d 176, 179 (7th Cir. 1978) (additional quotation marks omitted)). Relief under a motion to
vacate a conviction or correct a sentence is “reserved for extraordinary situations,” Prewitt v.
United States, 83 F.3d 812, 816 (7th Cir. 1996), and § 2255 relief is “an extraordinary remedy to
one who already has had an opportunity for full process,” Kafo v. United States, 467 F.3d 1063,
1068 (7th Cir. 2006) (citing Prewitt, 83 F.3d at 816).
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The Defendant contends that he is entitled to habeas relief on three grounds. In ground
one, he asserts that, by improperly advising him of an element of his § 924(c) offense, the Court
allowed him to plead guilty to Count 4 unknowingly and involuntarily.1 In ground two, he
maintains that attorney Kammen was ineffective because he did not object to the Court’s
statement of the elements of the Count 4 § 924(c) offense. In ground three, the Defendant argues
that attorney Galloway was ineffective on appeal because he did not raise the issue concerning
the Court’s misadvising on the elements of the § 924(c) offense, and instead filed an Anders
brief.
The Government contends that the Defendant waived his right to bring any of these
claims. The Government asserts, in the alternative, that the plea colloquy as a whole sufficiently
apprised the Defendant of the nature of the § 924(c) offense so that his plea was knowing and
voluntary. The Government also argues that, in light of Seventh Circuit precedent, counsel was
not ineffective at trial or on appeal in declining to raise the Defendant’s current § 924(c)
argument. The Defendant insists that he was prejudiced by his attorney’s failure to raise this
argument because he would have insisted on going to trial on Count 4, and because this
argument would have been likely to succeed on appeal.
A.
Legal Standard
1.
Plea Waivers
A plea agreement is a type of contract subject to contract law principles tempered by
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As part of ground one, the Court will consider the Defendant’s related arguments that he is
factually innocent, that he lacked the mens rea to be found guilty of the § 924(c) violation, that the Court
improperly amended the Indictment without submission to a grand jury, and that the Court violated
Federal Rule of Criminal Procedure 11 by accepting his plea of guilty.
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limits that the Constitution places on the criminal process. See United States v. Bownes, 405 F.3d
634, 636 (7th Cir. 2005). Waivers, including those that waive the right to collaterally attack a
conviction or sentence, are enforceable as a general rule. Jones v. United States, 167 F.3d 1142,
1145 (7th Cir. 1999). “A defendant may validly waive both his right to a direct appeal and his
right to collateral review under § 2255 as part of his plea agreement.” Keller v. United States,
657 F.3d 675, 681 (7th Cir. 2011) (citing Jones, 167 F.3d at 1144). Courts “enforce a plea
agreement’s appellate waiver if its terms are clear and unambiguous and the record shows that
the defendant knowingly and voluntarily entered into the agreement.” United States v. Linder,
530 F.3d 556, 561 (7th Cir. 2008). The Seventh Circuit has “generally upheld and enforced these
waivers, with limited exceptions for cases in which the plea agreement was involuntary, the
district court ‘relied on a constitutionally impermissible factor (such as race),’ the ‘sentence
exceeded the statutory maximum,’ or the defendant claims ‘ineffective assistance of counsel in
connection with the negotiation of [the plea] agreement.’” Keller, 657 F.3d at 681 (quoting
Jones, 167 F.3d at 1144–45).
2.
Ineffective Assistance of Counsel Claims
Claims of ineffective assistance of counsel are controlled by the two-pronged test set
forth in Strickland v. Washington, 46 U.S. 668 (1984). To establish and succeed on an ineffective
assistance of counsel claim, a defendant must demonstrate that the specific acts or omissions of
his attorney “fell below an objective standard of reasonableness” and that these acts or omissions
were “outside the wide range of professionally competent assistance.” Barker v. United States, 7
F.3d 629, 633 (7th Cir. 1993) (quoting Strickland, 466 U.S. at 688, 690); see also Hardamon v.
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United States, 319 F.3d 943, 948 (7th Cir. 2003); Anderson v. Sternes, 243 F.3d 1049, 1057 (7th
Cir. 2001). The Strickland test also requires that a defendant show prejudice, which is
demonstrated by a reasonable probability that “but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Strickland, 466 U.S. at 694. “To demonstrate
prejudice arising from a guilty plea allegedly rendered involuntary by counsel’s deficient
performance, a petitioner must establish that counsel’s performance was objectively
unreasonable and that, but for counsel’s erroneous advice, he would not have pleaded guilty.”
Bridgeman v. United States, 229 F.3d 589, 592 (7th Cir. 2000) (citing United States v. Martinez,
169 F.3d 1049, 1052–53 (7th Cir. 1999)). If the Court finds either the performance or the
prejudice component of the ineffective assistance claim deficient under the Strickland test, then
there is no need to consider the sufficiency of the other component. United States v. Slaughter,
900 F.2d 1119, 1124 (7th Cir. 1990). The court “presume[s] that the lawyer is competent to
provide the guiding hand that the defendant needs, [and so] the burden rests on the accused to
demonstrate a constitutional violation.” United States v. Cronic, 466 U.S. 648, 658 (1984) (citing
Michel v. Louisiana, 350 U.S. 91, 100–101 (1955)).
“Failure to raise a losing argument, whether at trial or on appeal, does not constitute
ineffective assistance of counsel.” Stone v. Farley, 86 F.3d 712, 717 (7th Cir. 1996).
B.
The Defendant’s Grounds for Habeas Relief
1.
The Defendant’s Plea of Guilty to Count 4 Was Knowing and Voluntary.
The essence of the Defendant’s § 2255 Motion relates to a statement by the Court at his
change of plea hearing. After reading the Defendant the charges in Counts 3 and 4 of the
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Indictment, including the Count 4 allegation that the Defendant knowingly possessed firearms in
furtherance of a drug trafficking crime, the Court then stated that one of the elements of Count 4
was that the Defendant “knowingly used or carried a firearm during and in relation to” his Count
3 drug trafficking offense. (Change of Plea Hr’g Tr. 29:7.) This was a misstatement. The Court
should have stated that the second element was the Defendant’s knowing possession of firearms
in furtherance of a drug trafficking crime, as alleged in the Indictment. Neither the Defendant nor
attorney Kammen raised any objection to the Court’s statement.
From this error, the Defendant suggests a host of violations. He notes that some courts
have interpreted 18 U.S.C. § 924(c) as creating two distinct offenses, see United States v.
Combs, 369 F.3d 925, 936 (6th Cir. 2004), and therefore argues that the Court improperly
amended the Indictment without presenting it to a grand jury and thus lacked jurisdiction to find
him guilty of the Count 4 offense. He construes this as a violation of Federal Rule of Criminal
Procedure 11, and also asserts that he was factually innocent of the charge as amended because
he lacked the mens rea to commit the rephrased infraction. Finally, and most pertinently, he
argues that his plea of guilty to Count 4 was not knowing and voluntary due to the Court’s
misstatement of the second element.
The Court notes as an initial matter that the Defendant has waived most of these
arguments. By signing his plea waiver, he waived the right to contest his conviction or the
manner in which his conviction was determined, “including any claim of ineffective assistance
of counsel unless the claimed ineffective assistance of counsel relates directly to” the waiver or
its negotiation. (Plea Agreement ¶ 7g.) Such waivers are generally enforceable. Jones, 167 F.3d
at 1145. However, waivers are not enforceable where “the plea agreement was involuntary, the
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district court relied on a constitutionally impermissible factor (such as race), the sentence
exceeded the statutory maximum, or the defendant claims ineffective assistance of counsel in
connection with the negotiation of the plea agreement.” Keller, 657 F.3d at 681 (quotation marks
and brackets omitted). The Defendant’s argument that the Court improperly amended the
Indictment does not, by itself, suggest that the plea agreement was involuntary, and does not
raise an ineffective assistance of counsel claim. Nor does such an argument suggest that the
Court relied on a constitutionally impermissible factor or that the sentence exceeded the statutory
maximum. Similarly, the Defendant’s arguments about violation of Federal Rule of Criminal
Procedure 11, factual innocence, and mens rea do not raise claims still available to the
Defendant. Accordingly, the Court finds that these arguments are waived, although the Court
will address the substance of all of these arguments in its discussion of voluntariness.
The Defendant argues that the Court’s misstatement of the second element of the Count 4
§ 924(c) charge rendered his plea of guilty to Count 4 unknowing and involuntary. The
Government argues, first, that the Defendant has waived this argument as well. The Court
disagrees with the Government on that point because “where a waiver is not the product of the
defendant’s free will . . . the defendant cannot be said to have knowingly and voluntarily
relinquished his rights.” Jones, 167 F.3d at 1145. The Government argues, in the alternative, that
the totality of the plea colloquy put the Defendant on notice of the crime to which he was
pleading guilty, and that his plea to Count 4 was thus knowing and voluntary in spite of the
single misstatement. After a review of the plea colloquy, the Court agrees.
A reviewing court employs “a totality of the circumstances approach” in order “[t]o
determine whether the defendant fully understood the nature of the charge to which he admitted
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guilt.” United States v. Bradley, 381 F.3d 641, 645 (7th Cir. 2004) (citing United States v.
Fernandez, 205 F.3d 1020, 1025 (7th Cir. 2000)). Factors to consider include “the complexity of
the charge, the evidence proffered by the Government, the judge’s inquiry during the plea
hearing and the defendant’s statement.” Bradley, 381 F.3d at 645; see also Fernandez, 205 F.3d
at 1025 (noting that reviewing courts also consider “the defendant’s level of intelligence, age,
and education . . . [and] whether the defendant was represented by counsel”).
In United States v. Harvey, 484 F.3d 453 (7th Cir. 2007), the Seventh Circuit examined
an appeal from a conviction for violating § 924(c). Although the defendant pled guilty to the
violation at the district court level, he argued on appeal that § 924(c) creates two distinct
offenses, one mak[ing] it illegal to use or carry a firearm during and in relation to a crime of
violence or drug trafficking crime; and the other mak[ing] it a crime to possess a firearm in
furtherance of any such crime.” Id. at 455. The indictment charged the defendant with
“knowingly and intentionally carrying a firearm in furtherance of a drug trafficking crime,” id. at
455–56 (brackets and ellipsis omitted), and the defendant therefore argued that it created “an
impermissible hybrid § 924(c) offense,” id. at 455. On appeal, he asked the Seventh Circuit to
either dismiss the indictment or allow him to withdraw his guilty plea. Because he did not ask to
withdraw from his guilty plea at trial, the Seventh Circuit reviewed for plain error. Id. In
reviewing the defendant’s § 924(c) argument, the court stated as follows:
[The indictment] included enough information to notify [the defendant] of the statute
under which he is being charged and the specific way in which he allegedly violated
that law. Whether we construe § 924(c) as creating one offense or two, it remains
true that the separate parts of § 924(c) criminalize similar behavior. See United
States v. Castillo, 406 F.3d 806, 814 (7th Cir. 2005) (“Quite simply, the portion of
§ 924(c) upon which we focus was intended to ‘combat the dangerous combination
of drugs and guns.’ “) (quoting Muscarello v. United States, 524 U.S. 125, 132
(1998)). The language used in the indictment here alerts [the defendant] that he is
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being charged with what the statute as a whole aims to prevent: carrying a firearm
that is closely connected to an underlying drug offense.
Id. at 456 (additional citations omitted). Moreover, the court found that “the phrases used in the
two parts of the statute are close enough in meaning that [the defendant] knew the essence of the
charges he was facing.” Id. at 457 (citing United States v. Weatherspoon, 581 F.2d 595, 600 (7th
Cir. 1978)). Finally, the court found that, “[t]aken as a whole, the depth and clarity of the plea
colloquy demonstrate convincingly that [the defendant] knew exactly what he was doing and its
consequences.” Harvey, 484 F.3d at 457 (citing United States v. LeDonne, 21 F.3d 1418, 1424
(7th Cir. 1994)). Because “[o]nly a pointlessly hypertechnical reading of the indictment . . .
would support [the defendant’s] claim that it was inadequate,” under the plain error standard, the
Seventh Circuit rejected the defendant’s claim that the indictment failed to charge a § 924(c)
offense, and denied his request to withdraw his guilty plea on the basis that it was not knowingly
or voluntarily entered. Harvey, 484 F.3d at 458.
The Seventh Circuit has not decided whether Ҥ 924(c) criminalizes two separate and
distinct offenses,” United States v. Haynes, 582 F.3d 686, 703 (7th Cir. 2009), vacated on other
grounds by United States v. Vizcarra, 668 F.3d 516, 521–22 (7th Cir. 2012)). Nevertheless, the
Court finds that the Harvey court’s analysis forecloses the Defendant’s ground one claim that he
unknowingly and involuntarily pled guilty to Count 4.
Under the totality of the circumstances test, the Court finds that the Defendant
understood the nature of Count 4 when he pled guilty to it. See Bradley, 381 F.3d at 645. The
charge of possession of firearms in furtherance of a drug trafficking crime was not complex; the
drug trafficking crime it referenced was the Count 3 possession charge to which the Defendant
was also pleading guilty. The Government proffered evidence substantiating the Count 4 charge,
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and the Defendant agreed to the evidence as stated by the Government. The Defendant himself
stated that he possessed firearms in furtherance of a drug trafficking crime, admitting to the
charge exactly as stated in the Indictment. Finally, as in Harvey, “the depth and clarity of the
plea colloquy demonstrate convincingly that [the Defendant] knew exactly what he was doing
and its consequences.” Harvey, 484 F.3d at 457. Although the Court in one instance misstated
one element of Count 4, the Court read the Indictment to the Defendant, and the Defendant
agreed that he was pleading guilty to Count 4 as stated. Moreover, the Court confirmed that the
Defendant possessed all the firearms listed in Count 4, and elicited the Defendant’s statement
that he possessed them for protection. Combined with the Government’s statement that the pistol
was found in a room where drug transactions had occurred, this was sufficient to substantiate the
Defendant’s knowing plea to Count 4. See United States v. Mitten, 592 F.3d 767, 777 (7th Cir.
2010) (recognizing that “a possessed gun can forward a drug-trafficking offense by providing the
dealer, his stash or his territory with protection” (quotation marks and citations omitted)). The
plea colloquy also demonstrates that the Defendant entered his guilty plea voluntarily, and that
no one coerced him in any way to enter his plea. The totality of the circumstances demonstrate
that the Defendant knowingly and voluntarily entered his plea of guilty to knowingly possessing
firearms in furtherance of a drug trafficking offense. Additionally, as in Harvey, the Defendant
failed to object “at a time when the government easily could have corrected the problem.”
Harvey, 484 F.3d at 458. The Defendant raises an argument from Bradley, where the Seventh
Circuit stated that “[w]hen there is no evidence that the requisite elements of the charged offense
were comprehended by any party to the proceeding, confidence in the defendant’s understanding
of that charge certainly is undermined.” 381 F.3d at 646–47. This is not such a case. Although
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the Court misstated one element of the Count 4 charge in one instance, in reality the Court, the
Government attorney, attorney Kammen, and the Defendant all understood that the second
element to the § 924(c) offense was that the Defendant knowingly possessed firearms in
furtherance of a drug trafficking crime. All parties knew that was the requisite element, and the
Defendant pled guilty to that element. Bradley does not undermine the Court’s confidence in the
Defendant’s understanding of the Count 4 charge to which he pled guilty.
The Defendant argues that the Court improperly amended the Indictment by misstating
one element of Count 4. But the plea colloquy shows that the Defendant pled guilty to the charge
exactly as stated in the Indictment, and that substantial Government evidence supported his plea.
The Defendant has failed to show that one inadvertent statement by the Court had the effect of
amending the Indictment, particularly where the Defendant knowingly pled guilty to the charge
exactly as stated in the Indictment. The Defendant argues that he is factually innocent of the
Count 4 charge because the evidence elicited at the plea colloquy showed mere possession of
firearms instead of possession in furtherance of a drug trafficking offense. On this point the
Defendant is again mistaken. As outlined above, the Defendant specifically stated that he
possessed firearms for protection, and this is sufficient to substantiate a § 924(c) conviction. See
Mitten, 592 F.3d at 777. The Defendant also argues that he lacked the mens rea to be convicted
of the offense as amended, but this argument fails for the reasons stated above—his statements at
the plea colloquy show that he had exactly the mens rea required by the Indictment. Notably,
when asked to state in his own words what he did in connection with the charges, the Defendant
stated “I possessed firearms in furtherance of the crime.” (Plea Hr’g Tr. 29:20.) The Defendant
notes that he objected to some of the firearms because they were antiques and because he did not
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have bullets for one of them. But the Defendant agreed that he kept a pistol in a room where drug
transactions occurred, and that he possessed the pistol for protection. This was sufficient to
substantiate his plea of guilty to Count 4. Finally, to the extent the Defendant argues the Court
violated Rule of Criminal Procedure 11 by accepting an unknowing and involuntary plea, for all
the reasons discussed above, he is incorrect.
Because the Defendant did not object to the Court’s statement of the elements in Count 4
or ask to withdraw his guilty plea while he was before the district court, the Court reviews for
plain error. United States v. Vonn, 535 U.S. 55, 62–63 (2002); Harvey, 484 F.3d at 455. “[A]
defendant who seeks reversal of his conviction after a guilty plea, on the ground that the district
court committed plain error under Rule 11, must show a reasonable probability that, but for the
error, he would not have entered the plea. A defendant must thus satisfy the judgment of the
reviewing court, informed by the entire record, that the probability of a different result is
‘sufficient to undermine confidence in the outcome’ of the proceeding.” United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004) (quoting Strickland, 466 U.S. at 694).
The Defendant does argue that, if not for the Court’s error, he would have gone forward
to trial instead of pleading guilty to Count 4. But the Court finds that there is no reasonable
probability that the Defendant would have actually gone forward to trial. The Defendant appears
to assume that if the Court had properly stated the second element of Count 4 as his knowing
possession of firearms in furtherance of a drug trafficking crime, he would then have demanded
to go to trial on Count 4, and Count 4 alone, with no other negative consequences. First, the
Defendant misunderstands the Plea Agreement. If he had violated his continuing obligation to
accept responsibility, he would have lost his three-level reduction in offense level under the
17
Sentencing Guidelines. Second, as articulated above, the Defendant pled guilty to the charge as
stated in Count 4 of the Indictment, so it is not reasonably probable that he would have
demanded to go to trial if the second element of Count 4 had been stated exactly as alleged in the
Indictment. For these reasons, because the Defendant has failed to show that the probability of a
different result is sufficient to undermine confidence in the outcome of the proceeding, his plain
error arguments fail.
Accordingly, the Court will deny the Defendant’s ground one claim that his plea of guilty
to Count 4 was unknowing and involuntary, and, although he waived the right to bring his
amendment, factual innocence, mens rea, and Rule 11 arguments, the Court finds that they
would be denied on their merits if not waived. Moreover, the Court will deny the Defendant’s
ground one claim of plain error.
2.
The Defendant’s Claim of Ineffective Assistance of Trial Counsel Fails on its Merits.
In ground two of his § 2255 Motion, the Defendant argues that attorney Kammen was
ineffective for failing to object to the Court’s amendment of the Indictment at the change of plea
hearing. The Government argued in its initial Response that the Defendant had waived his right
to bring this claim, but as stated in its Order of March 12, 2013, this claim of ineffective
assistance of counsel arguably goes to whether or not the Defendant would have agreed to plead
guilty, and thus the Court will address it on its merits. On the merits, the Government argues that
attorney Kammen was not ineffective for failing to object at the change of plea hearing, and that
the Defendant has failed to show any prejudice from attorney Kammen’s alleged error. The
Court agrees.
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“To make out a claim for ineffective assistance of counsel in the context of a guilty plea,
a defendant must show (1) that counsel’s performance fell below an objective standard of
reasonableness; and (2) that there is a reasonable probability that, but for counsel’s errors, the
defendant would not have pled guilty and would have insisted on going to trial.” Bethel v. United
States, 458 F.3d 711, 716–17 (7th Cir. 2006) (citing Hill v. Lockhart, 474 U.S. 52, 57–59
(1985)).
The Defendant has failed to show that attorney Kammen was ineffective for failing to
object to the Court’s statement of the elements of Count 4. As articulated above, given the
context of the plea colloquy as a whole, no amendment to the Indictment occurred at all.
Attorney Kammen heard his client plead guilty to the Count 4 charge exactly as stated in the
Indictment. Although attorney Kammen could have objected to the Court’s misstatement of the
second element of Count 4, given the context of the rest of the plea colloquy, it was not
objectively unreasonable for him to fail to do so. In light of the Seventh Circuit’s reasoning
about § 924(c) in Harvey, attorney Kammen was correct to conclude that a challenge to the
Court’s statement of the elements of Count 4 would have been unavailing. Moreover, the
Defendant ignores the logical result of any objection by attorney Kammen at the plea hearing.
Such an objection would not have resulted in the Defendant’s immediate acquittal on Count 4
due to factual innocence, lack of mens rea, an unconstitutional amendment to the Indictment, and
a violation of Rule 11. Instead, if attorney Kammen had objected to the Court’s misstatement of
the elements of the Count 4 charge, the Court would have immediately corrected the error and
the proceeding would have continued. The Defendant has failed to show that attorney Kammen’s
performance failed the first prong of Strickland.
19
Furthermore, the Defendant has also failed to show that he would have demanded to go
to trial but for attorney Kammen’s failure to object. For all the reasons discussed above in the
plain error analysis, the Court finds that the Defendant has failed to show that it is reasonably
likely that he would have demanded to go to trial if attorney Kammen had objected to the
Court’s statement of the elements of Count 4. Instead, it is reasonably likely that, had attorney
Kammen objected, the Court would have corrected the error and the Defendant would have
proceeded with his guilty plea.
For all these reasons, the Court will deny the Defendant’s ground two claim of
ineffectiveness against attorney Kammen for his representation at the change of plea hearing.
The Court will also deny the Defendant’s request for an evidentiary hearing regarding his
ineffective assistance of counsel claims. The Defendant has not submitted an affidavit in support
of his request, and the Court finds that he has not met the threshold for an evidentiary hearing.
See Galbraith v. United States, 313 F.3d 1001, 1009 (7th Cir. 2002) (“[I]n order for a hearing to
be granted, the petition must be accompanied by a detailed and specific affidavit which shows
that the petitioner had actual proof of the allegations going beyond mere unsupported
assertions.” (quotation marks omitted)). Indeed, it appears that there are no allegations or
assertions to explore in this matter, so an evidentiary hearing is not necessary.
3.
The Defendant’s Claim of Ineffective Assistance of Appellate Counsel is Waived, and
Would Fail on its Merits.
In ground three of his § 2255 Motion, the Defendant argues that attorney Galloway was
ineffective on appeal for filing an Anders brief instead of arguing that the Court improperly
amended the Indictment by misstating the second element of the Count 4 charge. In conjunction
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with his third ground, the Defendant now asks the Court to consider the Seventh Circuit’s recent
decision in Shaw v. Wilson, 721 F.3d 908 (7th Cir. 2013).2 The Government initially argued that
the Defendant waived his right to challenge appellate counsel’s performance, and now argues
that attorney Galloway’s decision to file an Anders brief does not violate either prong of the
Strickland analysis. The Court agrees with the Government on both points.
First, the Defendant’s argument that attorney Galloway was ineffective on appeal does
not relate to the voluntariness of the plea, and does not raise an allegation of ineffective
assistance of counsel in the negotiation of the plea. Therefore, this claim for § 2255 relief is
waived by the Plea Agreement.
Even if the Defendant had not waived this claim, it would fail on its merits. “The
framework for assessing the constitutional effectiveness of appellate counsel is the same twopronged Strickland test as for effectiveness of trial counsel.” Warren v. Baenen, 712 F.3d 1090,
1105 (7th Cir. 2013) (citing Smith v. Robbins, 528 U.S. 259, 285 (2000) and Howard v. Gramley,
225 F.3d 784, 789–90 (7th Cir. 2000)). When a defendant argues that appellate counsel “failed to
raise the correct issues on appeal,” Gramley, 225 F.3d at 790, the Seventh Circuit applies the
following standard:
We deem performance insufficient when counsel omits a significant and obvious issue
without a legitimate strategic reason for doing so. We find prejudice when that
omitted issue may have resulted in a reversal of the conviction, or an order for a new
trial.
Id. (quotation marks and citations omitted). In Shaw v. Wilson, the Seventh Circuit found
appellate counsel constitutionally ineffective where he was “faced with two potential arguments,
2
Because the Court is considering Shaw v. Wilson in rendering its decision, it will grant the
Defendant’s Motion for Consideration of Newly Promulgated Law [ECF No. 107].
21
one undeniably frivolous and the other solidly based on a state statute and reinforced by the
Indiana Supreme Court,” and where he “opted for the hopeless sufficiency challenge.” 721 F.3d
at 917.
The Defendant’s ineffectiveness challenge against attorney Galloway fails on its merits,
first, because a challenge to the allegedly amended Indictment was not a “significant and
obvious issue.” This is true because, for many of the reasons outlined above, the Court was
correct to accept the Defendant’s guilty plea based on the Government’s evidence, the
Defendant’s own statements, and the totality of the plea colloquy. In light of the Seventh
Circuit’s analysis in Harvey, a challenge to the 924(c) charge was unlikely to succeed. “Failure
to raise a losing argument, whether at trial or on appeal, does not constitute ineffective assistance
of counsel.” Stone, 86 F.3d at 717. Moreover, the Defendant has failed to show prejudice
because the omitted issue would not have resulted in a reversal of the conviction or an order for a
new trial. The Defendant’s citation to Shaw v. Wilson is unavailing. The Seventh Circuit granted
habeas relief in Shaw because appellate counsel chose an “undeniably frivolous” argument over
one “solidly based” in statute and caselaw. The Defendant presents no such omitted appellate
argument in this case, and thus Shaw is distinguishable.
For these reasons, the Court will deny ground three of the Defendant’s § 2255 Motion.
CERTIFICATE OF APPEALABILITY
Pursuant to Rule 11 of the Rules Governing Section 2255 Proceedings, the Court must
“issue or deny a certificate of appealability when it enters a final order adverse to the applicant.”
A certificate of appealability may be issued “only if the applicant has made a substantial
22
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); Rule 11 of Rules
Governing Section 2255 Proceedings. The substantial showing standard is met when “reasonable
jurists could debate whether (or, for that matter, agree that) the petition should have been
resolved in a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation
marks omitted); Barefoot v. Estelle, 463 U.S. 880, 893 & n.4 (1983). Where the district court has
rejected the constitutional claim on the merits, “the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Slack, 529 U.S. at 484. The
defendant is not required to show that he will ultimately succeed on appeal. Miller-El v.
Cockrell, 537 U.S. 322, 337, 342 (2003) (stating that the question is the “debatability of the
underlying constitutional claim, not the resolution of that debate”).
Rule 11(a) permits a district court to direct the parties to submit arguments on whether a
certificate of appealability should issue. Additional argument is not necessary here, however,
because no reasonable jurist could conclude that the Defendant did not knowingly and
voluntarily plead guilty pursuant to a Plea Agreement that contained an express waiver of the
right to collaterally attack his conviction or sentence. In addition, no reasonable jurist could
conclude that attorney Kammen rendered ineffective assistance in the negotiation of the Plea
Agreement. The record indicates that the Defendant’s plea was voluntary and that attorney
Kammen acted reasonably in his representation and did not in any way prejudice the Defendant
by failing to object to the Court’s statement of the elements of the Count 4 charge. The record
also indicates that attorney Galloway acted reasonably in not raising the Court’s misstatement of
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Count 4 on appeal because such an argument was not significant and obvious, and was not likely
to succeed. As such, the Defendant cannot make the necessary showing that reasonable jurists
would find the district court’s assessment of the voluntariness of the plea or of counsels’
performance debatable or wrong. Consequently, the Court will deny the Defendant a certificate
of appealability as to the habeas claims raised in his § 2255 Motion.
CONCLUSION
For the reasons stated, the Court DENIES the Defendant’s Motion to Vacate, Set Aside,
or Correct a Sentence by a Person in Federal Custody [ECF No. 84]. Moreover, the Court
GRANTS the Defendant’s Motion for Consideration of Newly Promulgated Law [ECF No. 107].
Finally, the Court DENIES the Defendant a certificate of appealability.
SO ORDERED on September 25, 2013.
s/ Theresa L. Springmann
THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
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