Devon Groves v. United States, 2014 U.S. App. LEXIS 11814

Devon Groves was convicted of possession of a firearm and ammunition by a felon under 18 U.S.C. § 922(g)(1) and sentenced to consecutive 120-month terms (240 months total); this court affirmed his conviction on direct appeal.
Groves filed a 28 U.S.C. § 2255 motion claiming ineffective assistance of trial counsel on two grounds: counsel failed to (1) object to the PSR treating a 1995 burglary as a "crime of violence" for Sentencing Guideline enhancement, and (2) communicate/execute Groves’s desire to accept a government plea offer.
Pretrial counsel Kowals received and communicated a November 2006 plea offer, which Groves initially rejected; later counsel May (appointed December 2006) did not recall seeing a signed plea agreement or discussing a plea because Groves repeatedly insisted on going to trial.
The PSR characterized Groves’s 1995 burglary conviction as burglary of a dwelling (a crime of violence under U.S.S.G. § 4B1.2(a)(2)), but Groves had pleaded to a lesser misdemeanor/lesser-degree burglary of a building under Indiana law.
The district court held an evidentiary hearing, credited Kowals’s and May’s testimony over Groves’s, denied relief; this court affirmed, applying Strickland and concluding counsel’s performance was not objectively unreasonable and did not prejudice Groves.

Issue	Groves's Argument	Government's Argument	Held
Whether counsel was ineffective for failing to inform Groves of or pursue the November 2006 plea after Groves had earlier rejected it	May failed to communicate/pursue Groves’s intent to accept the plea, denying effective assistance	Kowals informed Groves of the offer and Groves rejected it; May had no duty to press a previously rejected plea and Groves consistently wanted trial	Counsel not ineffective; no obligation for subsequent counsel to press a plea the defendant already rejected; factual findings credited that Groves wanted trial
Whether counsel was ineffective for failing to object to PSR treating 1995 burglary as a "crime of violence" under U.S.S.G. § 4B1.2(a)(2)	Counsel should have objected because Groves pleaded to a lesser burglary (building), not burglary of a dwelling, so § 4B1.2(a)(2) enhancement was improper	Counsel’s failure to anticipate later circuit and Supreme Court clarifications (Woods/Descamps) was not objectively unreasonable given timing; counsel successfully litigated other enhancements at sentencing	Counsel not ineffective; no Strickland deficiency because objection would have required anticipating future law and counsel’s overall performance was reasonable

Strickland v. Washington, 466 U.S. 668 (establishing ineffective-assistance standard)
Missouri v. Frye, 132 S. Ct. 1399 (counsel must communicate formal plea offers)
Lafler v. Cooper, 132 S. Ct. 1376 (right to effective counsel in considering plea bargains)
United States v. Woods, 576 F.3d 400 (7th Cir.) (clarifying divisible statute inquiry for prior-conviction analysis)
Descamps v. United States, 133 S. Ct. 2276 (adopting divisible/indivisible framework for prior-conviction categorical approach)
United States v. Groves, 559 F.3d 637 (7th Cir.) (Groves’s earlier direct-appeal decision)