Newman v. Schwochert

Filing 27

DECISION AND ORDER DENYING re 1 Petition for Writ of Habeas Corpus filed by Daniel L Newman. A certificate of appealability is also DENIED. The case is DISMISSED. (cc: all counsel)(Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DANIEL NEWMAN,
Petitioner,
v.

Case No. 13-C-103

JAMES SCHWOCHERT,
Respondent.

DECISION AND ORDER

Petitioner was convicted of burglary and armed robbery after a no-contest plea. He alleges
that his counsel was ineffective because counsel promised Petitioner would receive a specific
sentence of three to five years, which proved to be untrue (he received a much longer sentence).
Petitioner also alleges he was sentenced based on inaccurate information, namely, an allegation that
he had ripped a necklace off the victim’s neck. The state trial court and court of appeals denied
relief, and the state supreme court declined to take the case. For the reasons given below, the
petition will be denied and the case dismissed.
The Antiterrorism and Effective Death Penalty Act (“AEDPA”), permits habeas relief only
if the state-court adjudication resulted in a decision that “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the Supreme Court
of the United States” or “resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). A
state court decision is “contrary to” federal law when it “contradicts the governing law set forth in

[Supreme Court] cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision
involves an “unreasonable application of . . . clearly established federal law” when the state court
“identifies the correct governing legal rule from [Supreme Court] cases but unreasonably applies
it to the facts of the particular state prisoner's case.” Id. at 407. Alternatively, a state court decision
involves “an unreasonable determination of the facts” under § 2254(d)(2) only when the state court
makes an “unreasonable error.” Morgan v. Hardy, 662 F.3d 790, 798 (7th Cir. 2011). Here, I
conclude that the Petitioner does not meet either of these thresholds.

I. Ineffective Assistance of Counsel
Petitioner first argues that his counsel was ineffective for guaranteeing a sentence range that
later proved to be far off the mark. Strickland v. Washington guarantees that counsel’s performance
must meet a minimum threshold for competence, and this standard extends not just to trial but to
counseling regarding plea negotiations. 466 U.S. 668 (1984). Generally, predictions about
sentences that later prove incorrect do not rise to the level of constitutional incompetence because
attorneys cannot be expected to perfectly predict the minds of sentencing judges, who often have
the ability to impose a wide range of possible sentences. United States v. Martinez, 169 F.3d 1049,
1053 (7th Cir. 1999) (“An attorney’s mere inaccurate prediction of a sentence does not demonstrate
the deficiency component of an ineffective assistance of counsel claim.”). Even so, a significant
error regarding a defendant’s exposure or an attorney’s “guarantee” of a given sentence could give
rise to a claim for ineffective assistance.
In postconviction proceedings, the trial court heard testimony and concluded that Petitioner’s
version of the facts was not credible. Although his attorney did not recall any specific conversations
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regarding the expected sentence, he stated he would never have guaranteed a given sentence range
because sentencing was within the province of the court. Moreover, the court noted that Petitioner
himself stated on the record that he understood that the court was free to enter any sentence it saw
fit. Petitioner also had a lengthy history of prior convictions and understood the criminal justice
system well. Accordingly, the court found there was no basis to believe he had been promised a
specific sentence range that materially impacted his decision to plead guilty. The court of appeals
deferred to the trial court’s factual finding and concluded there were no grounds to find ineffective
assistance of counsel.
A. Evidentiary Hearing
The state trial court made a factual finding—that Petitioner’s story was not credible—and
that is the basis on which the denial of relief lay. Factual findings are entitled to “great deference.”
Coleman v. Hardy, 690 F.3d 811, 815 (7th Cir. 2012). “After AEDPA, we are required to presume
a state court's account of the facts correct, and the petitioner has ‘the burden of rebutting the
presumption of correctness by clear and convincing evidence.’” Id. (citing U.S.C. § 2254(e)(1)).
Petitioner argues that recordings of phone conversations between him and his attorney would
support his argument. This court denied his request to incorporate those phone records into this
action because they had not been part of the state court proceedings. In rare circumstances a federal
habeas petitioner may obtain an evidentiary hearing in federal court. 28 U.S.C. § 2254(e)(2).
During the postconviction hearing in the state trial court, Petitioner’s attorney noted that there were
phone recordings of attorney-client conversations and that the state had refused to turn them over.
(ECF No. 13-3 at 16-17.) The prison apparently told counsel that it would not release the

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recordings, nor would it honor a subpoena to produce them. Petitioner now asserts that these
recordings would corroborate his story that his attorney promised him a sentence of three to five
years.
Under § 2254(e)(1), a petitioner has the burden of rebutting the presumption of correctness
of a state court’s factual finding by clear and convincing evidence. In Avila v. Richardson, decided
only recently, the Seventh Circuit reversed the denial of a habeas petition and ordered an evidentiary
hearing to address whether the petitioner’s counsel had promised him he would receive a five-year
sentence. 2014 WL 1797397 (7th Cir. 2014). In that case, the state courts had not addressed the
issue because they concluded, contrary to Supreme Court precedent, that the petitioner’s guilty plea
had waived any challenge to his counsel’s performance. Here, the facts are somewhat different
because the state courts directly addressed the factual question about counsel’s performance, albeit
without the specific evidence Petitioner now asks to introduce. Even so, given his counsel’s efforts
to get the recordings, it cannot be said that Petitioner lacked diligence in trying to get the evidence
earlier, and thus § 2254(e)(2) would not appear to be a bar to an evidentiary hearing. Toliver v.
Pollard, 688 F.3d 853, 860 (7th Cir. 2012).1
B. Prejudice
I conclude that an evidentiary hearing is not required in this case, however, because the
record as a whole undermines the Petitioner’s claim of ineffective assistance. Under Strickland it
is not enough that an attorney’s performance falls below the constitutional standard; a defendant

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The state argues that the recordings are irrelevant because Petitioner testified that his
counsel gave him the bad advice during an in-person hearing rather than a phone call. That does
not appear to be the whole story, however. In fact, if that were the case Petitioner’s counsel would
not have tried to hard to obtain the phone recordings in the first place.
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must also show “a reasonable probability that, but for counsel's errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985). At least
two reasons prevent the Petitioner from showing prejudice.
1. Petitioner Does not Link Bad Advice to Decision to Plead Guilty
First, in order to show prejudice a defendant must demonstrate that he would likely not have
pled guilty without receiving the bad advice from his lawyer. Here, Petitioner makes no such effort.
In fact, he does not say he would have gone to trial. Instead, he argues that he would have accepted
an earlier plea offer from the state. Apparently the state made him an offer earlier in the
proceedings, which Petitioner rejected upon the advice of counsel. He argues that his attorney had
some unspecified distractions going on in his life at the time, which clouded his judgment. After
steering Petitioner away from accepting an earlier (more favorable) plea deal, he then told him to
accept a second deal. It was at this point that Petitioner alleges his attorney guaranteed him a
sentence of three to five years. (ECF No. 16 at 7.)
The problem for Petitioner is that, even if his statement is true, he was not prejudiced by his
attorney’s advice. He claims that had his attorney not given him the guarantee about a three-to-five
-year sentence, he would have accepted the earlier plea offer, which was more favorable. The
problem is that he alleges the attorney’s bad advice came after that offer had already been rejected.
At the time the bad advice was allegedly given, his only options were to accept the second plea offer
or to go to trial. He chose the plea offer. Nowhere does he argue that he would have gone to trial
if only he had known that there was no guaranteed sentence. And nowhere does he suggest (nor can
he), that some other offer would have been made if he had known the truth and rejected the state’s

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second offer. At its core, the problem is simply that the allegedly bad advice is not linked materially
to any decision the Petitioner had to make at the time the advice was given. In such circumstances,
a defendant cannot show that his attorney’s substandard conduct prejudiced him in any material
way.
2. The Plea Colloquy
An equally difficult problem for the Petitioner is the fact that he conceded on the record that
he had gone over the plea questionnaire with counsel, and the plea form stated that the judge had
the ability to sentence up to the maximum. (ECF No. 13-3 at 23:18-22.) Petitioner knew, therefore,
that there were no guaranteed sentences because the judge could sentence him up to the maximum
penalty allowed by statute. In addition, Petitioner further acknowledged this fact during his plea
colloquy with the sentencing judge. During the colloquy the court asked him the following
question:
Do you understand I do not have to follow the recommendation of the district
attorney’s office, a presentence writer or anyone else. And on the burglary, I could
sentence you to 12 and a half years in the Wisconsin state prison. Seven and a half
years of confinement. Five years of extended supervision. On the armed robbery,
40 years is the maximum sentence. 25 years of confinement, 15 years of extended
supervision. And I could run them consecutive, one after each other. Do you
understand that?
(ECF No. 13-2 at 8:6-18.)
Petitioner answered the question, “Yes, sir.” (Id. at 8:19.)
Here, the colloquy is important for two reasons. First, it undermines his credibility.
Petitioner’s testimony indicates that he understood that the sentencing judge was not bound by any
kind of agreement and could impose any sentence up to the maximum. But that understanding
stands in contravention of his allegation that his attorney had told him otherwise. If his lawyer had
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already promised him a guaranteed sentence, why would Petitioner tell the judge that he knew there
were no guarantees? The fact that he agreed that the judge could sentence him to the full range of
years—even after the judge noted that the two sentences could be consecutive—substantially
undercuts the credibility of Petitioner’s version of events.
But that issue is still in the nature of a factual dispute about what Petitioner’s counsel told
him. Wholly aside from the underlying question of ineffective assistance (i.e., what the attorney
actually said), there is the question of prejudice. Here, there can also be no showing of prejudice
because the trial court instructed Petitioner that the sentence would be wide open. Petitioner’s
predicament was thus caused not by his counsel’s error (assuming such an error were committed)
but by his own error in proceeding with the plea despite what the judge told him and what he
acknowledged to be true. Having proceeded to plead guilty after learning that the sentence was not
guaranteed, he has established beyond any doubt that he would not have acted differently had he
known the truth. Id. Thus, even if his attorney gave him bad advice, his own conduct showed that
it was not material advice because he proceeded to plead no contest despite knowing the risks
inherent in sentencing. Scott v. United States, 2012 WL 5028965, *5 (C.D. Ill. 2012) (“Even if the
performance prong [of Strickland] were satisfied, Petitioner does not allege sufficient prejudice to
be entitled to relief on ineffective assistance of counsel grounds. Because the court thoroughly
discussed the plea agreement with Petitioner, and determined he understood the charges against him,
the potential sentence, and the rights he was giving up by pleading guilty, any misinformation he
may have received from his attorney would have been cured and continued reliance on that
misinformation would be unreasonable.”)

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As the Seventh Circuit concluded in a similar case:
even if his attorney had told him that the maximum sentence he was facing was only
two years, the trial judge informed Paniagua-Bastien that he faced a maximum
sentence of 15 years and that his attorney and the government disagreed as to the
maximum potential sentence. Therefore, Paniagua-Bastien knew that, irrespective
of what his attorney had told him, he was not guaranteed a two-year sentence.
Moreover, even if his attorney had not explained the plea agreement to him, the trial
judge pointed out important aspects of his guilty plea and confirmed his
understanding. Thus, Paniagua-Bastien has not made a showing that he would not
have pleaded guilty had his attorney's performance not been deficient as alleged. In
other words, he has suffered no prejudice.
Paniagua-Bastien v. United States, 108 F.3d 1379, 1997 WL 139809, *2 (7th Cir. 1997). Cf.
Moore v. Bryant, 348 F.3d 238, 243 (7th Cir. 2003) (“Because nothing in the plea colloquy
addressed the length of sentence . . . he was likely to face if he went to trial and lost, that sequence
of questions did nothing to ameliorate the adverse impact of his counsel's misinformation.”)
The Seventh Circuit’s opinion in United States v. Barker is instructive. There, the defendant
alleged that his attorney gave him bad advice, and that he pled guilty as a result of that information.
The court rejected the claim because the district court cured any confusion prior to sentencing:
In this case, even if advice from Mr. Barker's trial attorney had led to his
misunderstanding of the consequences of his guilty plea, any such confusion was
cured by the trial court. The court conducted a thorough examination at the hearing,
taking careful and appropriate measures to dispel any confusion on Mr. Barker's part
before the plea was accepted. Furthermore, Mr. Barker admitted that he understood
the consequences. Thus the record reflects that Mr. Barker's guilty plea was
voluntary and was made with full knowledge of its consequences. Our review of the
record convinces us that Mr. Barker has failed to establish that any misinformation
by his attorney constituted ineffective assistance and that, but for such
misinformation, he would not have pleaded guilty.
Barker v. United States, 7 F.3d 629, 633-34 (7th Cir. 1992).
These and other cases stand for the sensible principle that when a competent defendant
testifies in open court on the record, he will be taken seriously. The Petitioner’s approach would
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undermine that principle by essentially rewarding defendants for lying under oath (testifying that
they understood the judge’s sentencing flexibility or that they had received no outside promises) or,
at a minimum, for proceeding as though what the sentencing judge said was simply untrue. United
States v. Lambey, 974 F.2d 1389, 1395 (4th Cir.1992) (en banc) (“If the information given by the
court at . . . hearing corrects or clarifies the earlier erroneous information given by the defendant's
attorney and the defendant admits to understanding the court's advice, the criminal justice system
must be able to rely on the subsequent dialogue between the court and the defendant.”) The time
for objecting to the sentencing range was during the colloquy, not now. Having proceeded in the
face of accurate information provided by the sentencing judge, the Petitioner cannot claim that his
attorney’s contrary advice prejudiced him. Accordingly, relief on this claim will be denied.

II. Sentence
Petitioner also argues that he was sentenced based on incorrect information. Specifically,
during the sentencing hearing the prosecutor stated that the Petitioner ripped a necklace off of the
victim’s neck, which aggravated the seriousness of the crime. Petitioner argues that the victim was
incorrect and that the judge improperly sentenced him based on false information. “A defendant
who requests re-sentencing due to the use of inaccurate information at the original sentencing must
show both that information before the sentencing court was inaccurate and that the sentencing court
relied on the inaccurate information in the sentencing.” Lechner v. Frank, 341 F.3d 635, 639 (7th
Cir. 2003).
The court of appeals rejected this claim because Petitioner never objected during the
sentencing. State v. Newman, 2012 WI App 88, 343 Wis.2d 678, 819 N.W.2d 563, 2012 WL
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2282558 (Wis. Ct. App. 2012). An appeal is not the proper time to resolve factual disputes raised
for the first time (how could the sentencing judge have known about the error if Petitioner did not
object?), and so the court concluded the issue was probably waived. Even so, the court went on to
find that Petitioner had not shown that the information was, in fact, false. Instead, all he did was
demonstrate that the information had not been included in the police report.
To reiterate, in order to succeed in a federal habeas challenge, Petitioner must demonstrate
that the state courts unreasonably applied federal law or made an unreasonable determination of the
facts. 28 U.S.C. § 2254(d). He does not demonstrate either. The court of appeals noted that due
process concerns required sentencing based on accurate information (although it cited state law
principles rather than federal ones), and then proceeded to conclude that Petitioner had simply failed
to show that the information was inaccurate. Id. This was not a misapplication of any federal law
or Supreme Court precedent, and neither was it an unreasonable determination of any facts.
The trial court made the factual determination that it had not relied on the information in
sentencing the Petitioner. Accordingly, the information about the necklace was not even material
to the sentence imposed. “[A] defendant who requests resentencing must establish that the
sentencing court also relied on the critical inaccurate information when announcing its sentence.”
Promotor v. Pollard, 628 F.3d 878, 888 (7th Cir. 2010). The armed robbery was an exercise in
brutality. The victim testified that Petitioner broke into her house, “grabbed me by my hair and
pushed me on the floor,” and then pushed her into her room at gunpoint, all in front of her family.
(ECF No. 13 at 24-25.) She refused his demand to take off her pants: “my kids were in the room
where he, like, hit me with the gun and, like, he tried to tell me to take off my pants.” When she

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refused to take them off, “he hit me in the face with the gun.” (Id. at 3.) The sentencing judge
concluded that the crime was “egregious” and “horrible” and concluded that the defendant had a
“horrendous” criminal record of some seventeen convictions. (Id. at 45.) The judge further noted
that if Petitioner had gone through with a jury trial, “I probably would have had no problem
imposing the 32 and a half years of initial confinement that was facing him.” (Id. at 48.)
During the postconviction hearing, the sentencing judge reiterated his view that the entirety
of the crime was egregious and found, not surprisingly, that the information about the necklace was
not material to the sentence he imposed. (ECF No. 4 at 11-12.) In some cases, ripping a necklace
off of a victim might be an aggravating factor—for example, a street robbery—but here, it paled in
comparison to the fact that the defendant hit the victim in the face with a gun and terrorized her in
front of her own small children. It did not add anything to the offensiveness of the crime because
the crime was already so contemptible. The sentencing judge’s conclusion that the necklace was
immaterial to the sentence was a reasonable determination of that fact, and it is a fact entitled to
great deference. And even if there were no level of deference, Petitioner cannot show that the
information was material to the sentence because the gravity and extent of the crime were so
grievous. In fact, the essence of his argument continues to be the simple fact that there is no record
of him taking the necklace in the police report or the victim’s statement. That does not mean it did
not occur, however. The prosecutor explained that the victim herself had told him about the
necklace, and so the bare statement that there was no record of that happening does not suffice to
render the statement inaccurate. For these reasons, relief will be denied on this claim as well.

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III. Conclusion
For the reasons given above, the petition is DENIED and the case is DISMISSED. Because
I conclude that reasonable jurists would not debate the outcome here, as to either claim, a certificate
of appealability is also DENIED. Slack v. McDaniel, 529 U.S. 473, 484 (2000).
SO ORDERED this

24th

day of June, 2014.

s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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